Exhibit 10.1
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Published CUSIP Number __________
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of November 7, 2006
among
THE GREENBRIER COMPANIES, INC.,
as the U.S. Borrower,
TRENTONWORKS LIMITED,
as the Canadian Borrower,
BANK OF AMERICA, N.A.,
as U.S. Administrative Agent,
BANK OF AMERICA, N.A.,
acting through its Canada branch,
as Canadian Administrative Agent,
UNION BANK OF CALIFORNIA, N.A.,
as Syndication Agent,
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agent,
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager,
and
The Other Lenders Party Hereto
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TABLE OF CONTENTS
Section Page
- ------- ----
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................... 1
1.01 Defined Terms................................................... 1
1.02 Other Interpretive Provisions................................... 28
1.03 Accounting Terms................................................ 29
1.04 Exchange Rates; Currency Equivalents............................ 29
1.05 Additional Alternative Currencies............................... 30
1.06 Change of Currency.............................................. 31
1.07 Times of Day.................................................... 31
1.08 Letter of Credit Amounts........................................ 31
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS......................... 32
2.01 Committed Loans................................................. 32
2.02 Borrowings, Conversions and Continuations of Committed Loans.... 32
2.03 Letters of Credit............................................... 35
2.04 Swing Line Loans................................................ 45
2.05 Security........................................................ 48
2.06 Prepayments..................................................... 48
2.07 Termination or Reduction of Commitments......................... 50
2.08 Repayment of Loans.............................................. 50
2.09 Interest........................................................ 50
2.10 Fees............................................................ 51
2.11 Computation of Interest and Fees................................ 52
2.12 Evidence of Debt................................................ 52
2.13 Payments Generally; Administrative Agent's Clawback............. 53
2.14 Sharing of Payments by Lenders.................................. 55
2.15 Increase in Commitments......................................... 55
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY....................... 56
3.01 Taxes........................................................... 56
3.02 Illegality...................................................... 59
3.03 Inability to Determine Rates.................................... 59
3.04 Increased Costs................................................. 59
3.05 Compensation for Losses......................................... 61
3.06 Mitigation Obligations; Replacement of Lenders.................. 62
3.07 Survival........................................................ 62
ARTICLE IV CONDITIONS PRECEDENT TO Credit Extensions..................... 62
4.01 Conditions of Initial Credit Extension.......................... 62
4.02 Conditions to all Credit Extensions............................. 65
ARTICLE V REPRESENTATIONS AND WARRANTIES................................. 65
5.01 Existence, Qualification and Power; Compliance with Laws........ 66
5.02 Authorization; No Contravention................................. 66
5.03 Governmental Authorization; Other Consents...................... 66
5.04 Binding Effect.................................................. 66
5.05 Financial Statements; No Material Adverse Effect; No Internal
Control Event................................................ 66
5.06 Litigation...................................................... 67
5.07 No Default...................................................... 67
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5.08 Ownership of Property; Liens.................................... 67
5.09 Environmental Compliance........................................ 67
5.10 Insurance....................................................... 68
5.11 Taxes........................................................... 68
5.12 ERISA Compliance................................................ 68
5.13 Subsidiaries; Equity Interests.................................. 69
5.14 Margin Regulations; Investment Company Act...................... 69
5.15 Disclosure...................................................... 69
5.16 Compliance with Laws............................................ 69
5.17 Intellectual Property; Licenses, Etc............................ 69
5.18 Representations as to Foreign Obligors.......................... 70
ARTICLE VI AFFIRMATIVE COVENANTS......................................... 71
6.01 Financial Statements............................................ 71
6.02 Certificates; Other Information................................. 72
6.03 Notices......................................................... 74
6.04 Payment of Obligations.......................................... 74
6.05 Preservation of Existence, Etc.................................. 74
6.06 Maintenance of Properties....................................... 74
6.07 Maintenance of Insurance........................................ 75
6.08 Compliance with Laws............................................ 75
6.09 Books and Records............................................... 75
6.10 Inspection Rights............................................... 75
6.11 Use of Proceeds................................................. 75
6.12 Approvals and Authorizations.................................... 75
6.13 Additional Subsidiary Guarantors................................ 75
6.14 Pledged Assets.................................................. 76
ARTICLE VII NEGATIVE COVENANTS........................................... 76
7.01 Liens........................................................... 77
7.02 Investments..................................................... 78
7.03 Indebtedness.................................................... 79
7.04 Fundamental Changes............................................. 80
7.05 Dispositions.................................................... 80
7.06 Restricted Payments............................................. 81
7.07 Change in Nature of Business.................................... 81
7.08 Transactions with Affiliates.................................... 81
7.09 Burdensome Agreements........................................... 82
7.10 Use of Proceeds................................................. 82
7.11 Financial Covenants............................................. 82
7.12 Capital Expenditures............................................ 82
7.13 Limitations on the Company...................................... 83
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES.............................. 83
8.01 Events of Default............................................... 83
8.02 Remedies Upon Event of Default.................................. 85
8.03 Application of Funds............................................ 85
ARTICLE IX ADMINISTRATIVE AGENT.......................................... 87
9.01 Appointment and Authority....................................... 87
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9.02 Rights as a Lender.............................................. 87
9.03 Exculpatory Provisions.......................................... 87
9.04 Reliance by Administrative Agent................................ 88
9.05 Delegation of Duties............................................ 88
9.06 Resignation of Administrative Agent............................. 88
9.07 Non-Reliance on Administrative Agent and Other Lenders.......... 89
9.08 No Other Duties, Etc............................................ 90
9.09 Administrative Agent May File Proofs of Claim................... 90
9.10 Collateral and Guaranty Matters................................. 90
ARTICLE X MISCELLANEOUS.................................................. 91
10.01 Amendments, Etc................................................. 91
10.02 Notices; Effectiveness; Electronic Communication................ 92
10.03 No Waiver; Cumulative Remedies.................................. 94
10.04 Expenses; Indemnity; Damage Waiver.............................. 94
10.05 Payments Set Aside.............................................. 96
10.06 Successors and Assigns.......................................... 96
10.07 Treatment of Certain Information; Confidentiality............... 100
10.08 Right of Setoff................................................. 101
10.09 Interest Rate Limitation........................................ 101
10.10 Counterparts; Integration; Effectiveness........................ 101
10.11 Survival of Representations and Warranties...................... 101
10.12 Severability.................................................... 102
10.13 Replacement of Lenders.......................................... 102
10.14 Governing Law; Jurisdiction; Etc................................ 103
10.15 Waiver of Jury Trial............................................ 104
10.16 USA PATRIOT Act Notice.......................................... 104
10.17 Judgment Currency............................................... 104
10.18 Statutory Notice................................................ 104
10.19 No Advisory or Fiduciary Responsibility......................... 105
10.20 Amendment and Restatement of Existing Credit Agreement.......... 105
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SCHEDULES
1.01A Existing Letters of Credit
1.01B Mandatory Cost Formulae
2.01 Commitments and Applicable Percentages
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.03 Existing Indebtedness
7.09 Burdensome Agreements
10.02 Administrative Agent's Office; Certain Addresses for Notices
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
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered into as
of November 7, 2006, among THE GREENBRIER COMPANIES, INC., an Oregon corporation
(the "Company"), TRENTONWORKS LIMITED, a Nova Scotia company ("TWI," or together
with the Company, the "Borrowers" and, each a "Borrower"), each Lender (defined
herein) from time to time a party hereto, BANK OF AMERICA, N.A., as U.S.
Administrative Agent, and BANK OF AMERICA, N.A., acting through its Canada
branch, as Canadian Administrative Agent.
INTRODUCTORY STATEMENT
The Company and TWI are parties to a Credit Agreement dated as of June 29,
2005 (as amended, supplemented or otherwise modified from time to time until
(but not including) the date of this Agreement, the "Existing Credit Agreement")
with certain Lenders and Bank of America, N.A., as administrative agent for such
Lenders.
The parties to this Agreement desire to amend the Existing Credit Agreement
as set forth herein and to restate the Existing Credit Agreement in its entirety
to read as follows. This Agreement is not a novation of the Existing Credit
Agreement.
The Company and TWI have requested that the Lenders provide each of them
with revolving loans and letters of credit, and the Lenders are willing to do so
on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Account" has the meaning provided in the Uniform Commercial Code in effect
in Oregon as of the Closing Date.
"Administrative Agent" means the U.S. Administrative Agent and/or the
Canadian Administrative Agent, as appropriate.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the U.S. 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 Canadian Commitments" means the Canadian Commitments of all the
Canadian Lenders. The initial amount of the Aggregate Canadian Commitments in
effect on the Closing Date is $10,000,000.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Aggregate U.S. Commitments" means the U.S. Commitments of all the U.S.
Lenders. The initial amount of the Aggregate U.S. Commitments in effect on the
Closing Date is $290,000,000.
"Agreement" means this Credit Agreement.
"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 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 Aggregate
U.S. Commitments.
"Applicable Percentage" means with respect to any Lender at any time, (a)
with respect to such Lender's U.S. Commitment at such time, the percentage
(carried out to the ninth decimal place) of the Aggregate U.S. Commitments
represented by such Lender's U.S. Commitment at such time; provided that if the
commitments of each U.S. Lender to make U.S. Committed Loans and the obligation
of the U.S. L/C Issuer to make L/C Credit Extensions under the U.S. Revolving
Credit Facility have been terminated pursuant to Section 8.02 or if the
Aggregate U.S. Commitments have expired, then such Applicable Percentage shall
be determined based on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments and (b) with respect to such
Lender's Canadian Commitment at such time, the percentage (carried out to the
ninth decimal place) of the Aggregate Canadian Commitments represented by such
Lender's Canadian Commitment at such time; provided that if the commitments of
each Canadian Lender to make Canadian Committed Loans and the obligation of the
Canadian L/C Issuer to make L/C Credit Extensions under the Canadian Revolving
Credit Facility have been terminated pursuant to Section 8.02 or if the
Aggregate Canadian Commitments have expired, then such Applicable Percentage
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 (or other document
contemplated by this Agreement) pursuant to which such Lender becomes a party
hereto, as applicable.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Consolidated Capitalization Ratio as set forth below:
APPLICABLE RATE
CONSOLIDATED EUROCURRENCY
PRICING CAPITALIZATION COMMITMENT RATE LOANS + BASE RATE
LEVEL RATIO FEE LETTERS OF CREDIT LOANS
- ------- -------------------- ---------- ----------------- ---------
1 Greater than or 0.30% 1.50% 0%
equal to 0.65 to 1.0
2 Greater than or 0.25% 1.25% 0%
equal to 0.55 to
l.0 and less than
0.65 to 1.0
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3 Greater than or 0.20% 1.00% 0%
equal to 0.45 to
1.0 and less than
0.55 to 1.0
4 Less than 0.45 to
1.0 0.15% 0.75% 0%
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 applicable Administrative Agent
or the applicable L/C Issuer, as the case may be, to be necessary for timely
settlement on the relevant date in accordance with normal banking procedures in
the place of payment.
"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 assignee (with the consent of any party whose consent is
required by Section 10.06(b), and accepted by the applicable Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
applicable Administrative Agent.
"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 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, 2006,
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 U.S. Commitments and/or the Aggregate
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Canadian Commitments, as applicable, pursuant to Section 2.07, and (c) the date
of termination of the Commitment of each Lender to make Loans and of the
obligation of each 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:
(a) in the case of Loans under the U.S. Revolving Credit Facility, for
any day a fluctuating rate per annum equal to the higher of (i) the Federal
Funds Rate plus 1/2 of 1% and (ii) the rate of interest in effect for such
day as publicly announced from time to time by the U.S. Administrative
Agent as its "prime rate";
(b) in the case of Loans under the Canadian Revolving Credit Facility
that are denominated in Canadian Dollars, for any day a fluctuating rate
per annum equal to the higher of (i) the CDOR Rate plus 1/2 of 1% and (ii)
the rate of interest in effect for such day as publicly announced from time
to time by the Canadian Administrative Agent as its "prime rate"; and
(a) in the case of Loans under the Canadian Revolving Credit Facility
that are denominated in Dollars, for any day a fluctuating rate per annum
equal to the higher of (i) the rate which the Canadian Administrative Agent
in Toronto, Ontario announces from time to time as the reference rate of
interest for loans in Dollars to its Canadian borrowers; and (ii) the
Federal Funds Rate plus 1/2 of 1%.
The "prime rate" is a rate set by the applicable Administrative Agent based
upon various factors including its 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 the applicable Administrative Agent 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 under the U.S. Revolving Credit Facility shall be
denominated in Dollars. All Base Rate Loans under the Canadian Revolving Credit
Facility shall be denominated in Dollars or Canadian 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 U.S. Administrative Agent,
which calculates both the U.S. Borrowing Base and Canadian Borrowing Base as of
any date of determination.
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"Business Day" means (i) with respect to Obligations under the U.S.
Revolving Credit Facility denominated in Dollars, 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 U.S. Administrative
Agent's Office is located, and (ii) with respect to Obligations under the
Canadian Revolving Credit Facility the province in Canada where the Canadian
Administrative Agent's Office is located, and, in either case (where
applicable):
(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 Administrative Agent" means Bank of America through its Canada
branch, acting as Canadian administrative agent under any of the Loan Documents,
or any successor Canadian administrative agent.
"Canadian Administrative Agent's Office" means the Canadian Administrative
Agent's Canadian address and, as appropriate, account as set forth on Schedule
10.02, or such other Canadian address or account as the Canadian Administrative
Agent may from time to time notify to the Borrowers and the Canadian Lenders.
"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 plus (ii) 50% of the Canadian
Dollar amount of Eligible Inventory plus (iii) 50% of the Canadian Dollar amount
of Eligible Property, Plant and Equipment minus (iv) if at such date of
determination there is more than one Canadian Lender, an amount equal to the
Canadian Swingline Sublimit in effect on such date.
"Canadian Commitment" means, as to each Canadian Lender, its obligation to
(a) make Canadian Committed Loans to TWI pursuant to Section 2.01(b), (b)
purchase participations in Canadian L/C
5
Obligations, and (c) purchase participations in Canadian Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the
Canadian Dollar amount set forth opposite such Canadian Lender's name on
Schedule 2.01 or in the Assignment and Assumption or other documentation
pursuant to which such Canadian Lender becomes a party hereto, as applicable, as
such amount may be adjusted from time to time in accordance with this Agreement.
"Canadian Committed Loan" has the meaning specified in Section 2.01(b).
Canadian Committed Loans may be denominated in Dollars or Canadian Dollars.
"Canadian Dollar" or "CDN$" means lawful money of Canada.
"Canadian Dollar Equivalent" means (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 Administrative Agent or the
Canadian 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 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 Canada, that are applicable
to the circumstances as of the date of determination, consistently applied.
"Canadian L/C Issuer" means Bank of America acting through its Canada
branch, or any successor issuer of Canadian Letters of Credit.
"Canadian L/C Obligations" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Canadian Letters of
Credit plus the aggregate of all Unreimbursed Amounts with respect to Canadian
Letters of Credit, including L/C Borrowings. For purposes of computing the
amount available to be drawn under any Canadian Letter of Credit, the amount of
such Canadian 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
Canadian 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
Canadian Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Canadian Lender" means, at any time, a Lender that has a Canadian
Commitment.
"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
Aggregate Canadian Commitments.
"Canadian Letter of Credit" means a standby or commercial letter of credit
issued under the Canadian Revolving Credit Facility. Canadian Letters of Credit
may be issued in Dollars, Canadian Dollars or in other Alternative Currencies.
"Canadian Revolver Ceiling" means the amount that is the lesser of (a) the
Aggregate Canadian Commitments or (b) the amount available under the Canadian
Borrowing Base.
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"Canadian Revolving Credit Facility" means the multiple advance revolving
credit facility made available to TWI pursuant to Article II.
"Canadian Swing Line Lender" means Bank of America acting through its
Canada branch, or any successor Canadian Swing Line Lender hereunder.
"Canadian Swing Line Loan" has the meaning specified in Section 2.04(a).
Canadian Swing Line Loans must be denominated in Canadian Dollars.
"Canadian Swing Line Sublimit" means (a) at such times as Bank of America
is the only Canadian Lender, the amount available under the Canadian Revolver
Ceiling and (b) at all other times, an amount equal to the lesser of
CDN$5,000,000 and the amount available under the Canadian Revolver Ceiling. The
Canadian Swing Line Sublimit is part of, and not in addition to, the Aggregate
Canadian Commitments.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"CDOR Rate" means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of 1/100 of 1%) which is the arithmetic
average of the "BA 1 month" rates applicable to Canadian Dollar bankers'
acceptances identified as such on the Reuters Screen CDOR Page at approximately
10:00 a.m. on such day (as adjusted by the Canadian Administrative Agent after
10:00 a.m. (Toronto time) to reflect any error in any posted rate or in the
posted average per annum rate). If such rate does not appear on the Reuters
Screen CDOR Page as contemplated above, then the CDOR Rate on any day shall be
the rate quoted by the Canadian Administrative Agent.
"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
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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 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);
(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; or
(d) so long as any Canadian Commitment is in effect or any Obligations
under the Canadian Revolving Credit Facility remain outstanding, the
failure of the Company to own and control at least 75% of the outstanding
voting Equity Interests of TWI.
"Closing Date" means November 7, 2006.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means any and all assets and rights and interests in or to
property of the Loan Parties, whether tangible or intangible, in which a Lien is
granted or purported to be granted pursuant to the Loan Documents to secure any
of the Obligations.
"Commitment" means, as to each Lender, the U.S. Commitment and/or the
Canadian Commitment of such Lender, as appropriate.
"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
applicable Lenders pursuant to Section 2.01.
"Committed Loan" means a U.S. Committed Loan and/or a Canadian Committed
Loan, as appropriate.
"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 as of such date.
8
"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) income tax expense or benefit (net of income tax credits) as reported on
the consolidated statement of operations of 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 (iv) non-cash stock compensation expenses for such period
which do not represent a cash item in such period or any future period, and
minus (b) to the extent included in calculating such Consolidated Net Income,
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.
"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 (other than fees that are capitalized and
amortized over the life of a loan), prepayment fees, Swap Contract 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.
"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.
9
"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 applicable 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 U.S. Administrative Agent or the U.S. 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 any Loan Party which satisfies
all of the following requirements:
(a) the Account is a genuine obligation resulting from the sale of
goods or services by such Loan Party to a Person other than a Subsidiary,
Affiliate, SPE or Joint Venture 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;
10
(c) there are no conditions which must be satisfied before such Loan
Party 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 Company 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; and
(f) except with respect to car hire receivables, such Loan Party has
sent an invoice or statement to the account debtor in the amount of the
Account.
"Eligible Assignee" means any Person that meets the requirements to be an
assignee under Sections 10.06(b)(iii), (v) and (vi) (subject to such consents,
if any, as may be required under Section 10.06(b)(iii)).
"Eligible Inventory" means all Inventory of the Loan Parties, 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 a Loan Party and is subject to a first
priority perfected Lien to secure the Obligations;
(b) the Inventory is held for sale in the business of a Loan Party, 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 applicable Loan Party is not
subject or has the benefit of, and which would prohibit or restrict its
sale by the Lender to third parties; and
(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 Loan Parties, 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
11
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" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of,
or interest in, (however designated) equity of such Person, including any
preferred stock, but excluding any debt security that is convertible into, or
exchangeable for Equity Interests.
"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 applicable 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
applicable 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
12
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 under the U.S.
Revolving Credit Facility may be denominated in Dollars or in an Alternative
Currency. Eurocurrency Rate Loans under the Canadian Revolving Credit Facility
may be denominated in Dollars or in Canadian Dollars. All U.S. 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 Property" means, collectively (a) rights under contracts and
agreements which by their terms prohibit the granting of a security interest
therein or assignment thereof (except (i) for accounts, payment intangibles and
other general intangibles for money due or to become due thereunder, (ii) for
any such contract as to which consent for the Lien created hereby has been
obtained and (iii) to the extent that an otherwise applicable prohibition on
such grant is rendered ineffective by the Uniform Commercial Code or other
applicable Laws), (b) equipment subject to a capitalized lease or purchase money
Liens permitted under Section 7.01 that prohibit the granting of any other Lien
on such equipment; provided that such equipment shall become Collateral upon
release of such capitalized lease or purchase money Lien, (c) any fixtures
attached to real property that is subject to a Lien permitted under Section
7.01, (d) lease-related assets, including, but not limited to, rail cars, marine
barges and other surface transportation equipment, and related chattel paper,
that (i) is subject to Liens that secure Term Debt permitted under Section
7.03(d) that prohibit the granting of any other Lien on such assets and (ii) is
excluded from both the U.S. Borrowing Base and the Canadian Borrowing Base;
provided that such assets shall become Collateral upon release of such Lien, (e)
any IP Rights for which a perfected Lien thereon is not effected either by
filing of a Uniform Commercial Code financing statement or, in the case of TWI,
a Personal Property Security Act (Canada) financing statement or by appropriate
evidence of such Lien being filed in either the United States Copyright Office,
the United States Patent and Trademark Office or, in the case of TWI, any
comparable governmental agency in Canada, and (f) unless otherwise pledged as
Collateral by the Loan Parties in their discretion, any personal property (other
than personal property described in clause (e) above) for which the attachment
or perfection of a Lien thereon is not governed by either the Uniform Commercial
Code or, in the case of TWI, the Personal Property Security Act (Canada) or
evidenced by filings with the Surface Transportation Board.
"Excluded Taxes" means, with respect to either Administrative Agent, any
Lender, either 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
13
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" has the meaning specified in the Introductory
Statement hereto.
"Existing Letters of Credit" means those Letters of Credit listed on
Schedule 1.01A.
"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 applicable
Administrative Agent.
"Fee Letter" means the letter agreement, dated September 21, 2006, among
the Company, the U.S. Administrative Agent and the Arranger.
"Foreign Lender" means (a) with respect to the Company, any Lender that is
organized under the laws of a jurisdiction other than that in which the Company
is resident for tax purposes and (b) with respect to TWI, any Lender that is a
non-resident of Canada for purposes of the Income Tax Act (Canada) and is not an
authorized foreign bank for purposes of the Income Tax Act (Canada) that is
deemed to be resident in Canada for purposes of Part XIII of the Income Tax Act
(Canada) in respect of all payments to such Lender hereunder. 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
14
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 Closing Date.
"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 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.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Honor Date" has the meaning specified in Section 2.03(c).
"Immaterial Subsidiary" means, as of any date, any Subsidiary whose total
assets, as of that date, are less than $5,000,000 and whose total revenues for
the most recent 12-month period do not exceed $5,000,000.
"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:
15
(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 Guarantees, 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 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.
"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.
16
"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 applicable Borrower in its Committed Loan Notice or such other
period that is twelve months or less requested by such Borrower any and
consented to by all the applicable 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 all or any substantial portion of the property of, or a line
of business or division of, another Person. 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 applicable L/C Issuer and the applicable Borrower (or any
Subsidiary) or in favor such 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
17
legal entity) now or hereafter formed by the Company or any of its 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 in respect of U.S. Letters of Credit shall be
denominated in Dollars, and all L/C Advances in respect of Canadian Letters of
Credit shall be denominated in Canadian Dollars or 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 in respect of U.S.
Letters of Credit shall be denominated in Dollars, and all L/C Borrowings in
respect of Canadian Letters of Credit shall be denominated in Canadian Dollars
or Dollars.
"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 the U.S. L/C Issuer or the Canadian L/C Issuer, as
appropriate.
"L/C Obligations" means the U.S. L/C Obligations and the Canadian L/C
Obligations, individually or collectively, as appropriate.
"Lender" means each of the Persons identified as a "Lender" on the
signature pages hereto and each other Person that becomes a "Lender" in
accordance with this Agreement and their successors and assigns and, as the
context requires, includes each 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 applicable Administrative Agent.
"Letter of Credit" means any U.S. Letter of Credit or Canadian Letter of
Credit, as appropriate.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the applicable L/C Issuer.
"Letter of Credit Expiration Date" means the day that is 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" means any letter of credit fee payable by a Borrower
to the applicable Administrative Agent, for the account of the appropriate
Lenders, pursuant to Section 2.03(i).
18
"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 (a) this Agreement, (b) each Note, (c) each Issuer
Document, (d) the Fee Letter, (e) the Guaranties, (f) the Security Agreement,
(g) the Pledge Agreement, (h) that certain Demand Debenture, dated as of October
29, 2004, among TWI and Bank of America, acting through its Canada branch and
(i) each other security agreement, pledge, deed of trust, mortgage or other
document purporting to create a Lien on 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 1.01B.
"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 November 7, 2011.
"Meridian Acquisition" means the acquisition on the Closing Date by
Gunderson Rail Services LLC of all of the outstanding Equity Interests of
Meridian Rail Holdings Corp. pursuant to and in accordance with the terms of the
Purchase Agreement.
"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.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party 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. The foregoing shall also include (a)
all obligations under any
19
Swap Contract between any Loan Party and any Lender or Affiliate of a Lender
that is permitted to be incurred pursuant to Section 7.03(c) and (b) all
obligations under any Treasury Management Agreement between any Loan Party and
any Lender or Affiliate of a Lender.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to U.S. 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 U.S. Committed Loans occurring on such date; (ii) with respect to U.S.
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; (iii) with respect to any U.S. L/C
Obligations on any date, the Dollar Equivalent amount of the aggregate
outstanding amount of such U.S. 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 U.S. L/C Obligations as of such date, including as a
result of any reimbursement of Unreimbursed Amounts; (iv) with respect to
Canadian Committed Loans on any date, the Canadian Dollar Equivalent amount of
the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Canadian Committed Loans
occurring on such date; (v) with respect to Canadian Swing Line Loans on any
date, the aggregate outstanding principal amount thereof after giving effect to
any borrowings and prepayments or repayments of such Canadian Swing Line Loans
occurring on such date; and (vi) with respect to any Canadian L/C Obligations on
any date, the Canadian Dollar Equivalent amount of the aggregate outstanding
amount of such Canadian 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 Canadian L/C Obligations as of such date, including as a
result of any reimbursement of Unreimbursed Amounts.
"Overdraft" means an overdraft on a deposit account maintained by TWI with
the Canadian Swing Line 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 applicable Administrative Agent, the applicable
L/C Issuer, or the applicable 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.
20
"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.
"Permitted Acquisition" means an Investment consisting of the acquisition
by the Company or a Subsidiary Guarantor, in a single transaction or in a series
of related transactions, of either (a) all or any substantial portion of the
property of, or a line of business or division of, another Person or (b) at
least a majority of the Voting Stock of another Person, in each case whether or
not involving a merger or consolidation with such other Person (any such
transaction, an "Acquisition"), provided that (i) the property acquired (or the
property of the Person acquired) in such Acquisition is used or useful in the
same or a similar line of business as the Company and its Subsidiaries were
engaged in on the Closing Date (or any reasonable extensions or expansions
thereof), (ii) in the case of an Acquisition of the Equity Interests of another
Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition, (iii) the Company shall
have delivered to the U.S. Administrative Agent a certificate demonstrating
that, upon giving effect to such Acquisition, the Loan Parties would be in
compliance with the financial covenants set forth in Section 7.11 on a Pro Forma
Basis, (iv) the representations and warranties made by the Loan Parties in each
Loan Document shall be true and correct in all material respects at and as if
made as of the date of such Acquisition (after giving effect thereto), (v) if
such transaction involves the purchase of an interest in a partnership between a
Loan Party as a general partner and entities unaffiliated with the Company as
the other partners, such transaction shall be effected by having such equity
interest acquired by a corporate holding company directly or indirectly
wholly-owned by such Loan Party newly formed for the sole purpose of effecting
such transaction, and (vi) immediately after giving effect to such Acquisition,
there shall be at least $25,000,000 of undrawn availability under the Aggregate
U.S. Commitments and the U.S. Revolver Ceiling, which amounts would be permitted
to be drawn under Section 4.09(b)(1) of the Senior Debt Indenture.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by 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.
21
"Pledge Agreement" means that certain Amended and Restated Pledge
Agreement, dated as of the Closing Date, among the Subsidiary Guarantors party
thereto and the U.S. Administrative Agent.
"Pro Forma Basis" means, for purposes of calculating the financial
covenants set forth in Section 7.11 (including for purposes of determining the
Applicable Rate), that any Permitted Acquisition shall be deemed to have
occurred as of the first day of the most recent four fiscal quarter period
preceding the date of such transaction for which the Company was required to
deliver (and has delivered) financial statements pursuant to Section 6.01(a) or
(b). In connection with the foregoing, (a) income statement items attributable
to the Person or property acquired shall be included to the extent relating to
any period applicable in such calculations to the extent (i) such items are not
otherwise included in such income statement items for the Company and its
Subsidiaries in accordance with GAAP or in accordance with any defined terms set
forth in Section 1.01 and (ii) such items are supported by financial statements
or other information reasonably satisfactory to the U.S. Administrative Agent
and (b) any Indebtedness incurred or assumed by the Company or any Subsidiary
(including the Person or property acquired) in connection with such transaction
and any Indebtedness of the Person or property acquired which is not retired in
connection with such transaction shall be deemed to have been incurred as of the
first day of the applicable period.
"Purchase Agreement" means that certain Stock Purchase Agreement dated as
of October 15, 2006 among Gunderson Rail Services LLC, Meridian Rail Holdings
Corp., the Persons listed on the signature pages thereto under the heading
"Sellers" and Olympus Growth Fund IV, L.P. as the representative for such
"Sellers".
"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 Canadian Lenders" means, as at any date of determination,
Canadian Lenders holding in the aggregate more than 50% of (a) the unfunded
Canadian Commitments and the outstanding Canadian Committed Loans, Canadian L/C
Obligations and participations therein or (b) if the Canadian Commitments have
been terminated, the outstanding Canadian Committed Loans, Canadian L/C
Obligations and participations therein. The unfunded Canadian Commitments of,
and the outstanding Canadian Committed Loans held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Canadian Lenders.
"Required Lenders" means, as at any date of determination, Lenders holding
in the aggregate more than 50% of (a) the Dollar amount of the unfunded
Commitments and the outstanding Committed Loans, L/C Obligations and
participations therein or (b) if the Commitments have been terminated, the
Dollar amount of the outstanding Committed Loans, L/C Obligations and
participations therein. The
22
unfunded Commitments of, and the outstanding Committed Loans held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Required U.S. Lenders" means, as at any date of determination, U.S.
Lenders holding in the aggregate more than 50% of (a) the unfunded U.S.
Commitments and the outstanding U.S. Committed Loans, U.S. L/C Obligations and
participations therein or (b) if the U.S. Commitments have been terminated, the
outstanding U.S. Committed Loans, U.S. L/C Obligations and participations
therein. The unfunded U.S. Commitments of, and the outstanding U.S. Committed
Loans held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required U.S. Lenders.
"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.
"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.
"Revaluation Date" means (a) with respect to any U.S. Committed 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 U.S. Administrative Agent
shall determine or the Required U.S. Lenders shall require; (b) with respect to
any Canadian Committed Loan, each of the following: (i) each date of a Borrowing
of a Eurocurrency Rate Loan denominated in Dollars, and (ii) each date of a
continuation of a Eurocurrency Rate Loan denominated in Dollars pursuant to
Section 2.02, and (iii) such additional dates as the Canadian Administrative
Agent shall determine or the Required Canadian Lenders shall require; and (c)
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 (other
than a Canadian Letter of Credit denominated in Canadian Dollars) or a Canadian
Letter of Credit denominated in Dollars, (ii) each date of an amendment of any
such Letter of Credit having the effect of increasing the amount thereof (solely
with respect to the increased amount), (iii) each date of any payment by the
applicable L/C Issuer under any Letter of Credit denominated in an Alternative
Currency (other than a Canadian Letter of Credit denominated in Canadian
Dollars) or a Canadian Letter of Credit denominated in Dollars, and (iv) such
additional dates as the applicable Administrative Agent or the applicable 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 applicable Administrative Agent or the applicable L/C Issuer,
as the case may be, to be customary in the place of disbursement or payment for
the settlement of international banking transactions in the relevant Alternative
Currency.
"Sarbanes-Oxley" means the Sarbanes-Oxley Act of 2002.
23
"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.
"Security Agreement" means that certain Amended and Restated Security
Agreement, dated as of the Closing Date, among the Subsidiary Guarantors party
thereto and the U.S. Administrative Agent.
"Senior Debt Indenture" means that certain Indenture dated as of May 11,
2005 among the Borrower, the guarantors party thereto and U.S. Bank National
Association, as trustee, relating to the Company's 8-3/8% Senior Notes due 2015.
"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.
"SPE" means any Person that is a direct or indirect, wholly-owned special
purpose subsidiary of the Company that engages in no activities other than those
reasonably related to or in connection with the entering into of transactions
described in Section 7.05 and which is designated by the board of directors of
the Company as an SPE; provided (a) that neither the Company nor any Subsidiary
(i) shall provide any Guarantee or other credit support to such Person, (ii)
shall have any contract, agreement, arrangement or understanding with such
Person other than on terms that are fair and reasonable and that are no less
favorable to the Company or such Subsidiary than could be obtained from an
unrelated Person (other than representations, warranties and covenants
(including those relating to servicing) entered into in the ordinary course of
business in connection with a transactions contemplated by Section 7.05(f)) and
(iii) shall have any obligation to maintain or preserve such Person's financial
condition or to cause such Person to achieve certain levels of operating results
and (b) no portion of the Indebtedness or any other obligations (contingent or
otherwise) of such Person shall be recourse to the Company or its Subsidiaries
(other than representations, warranties and covenants (including those relating
to servicing) entered into in the ordinary course of business in connection with
a transactions contemplated by Section 7.05(f)).
"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 applicable
Administrative Agent or the applicable L/C Issuer, as applicable, to be the rate
quoted by the Person acting in such capacity as the spot rate for the purchase
by such Person of such currency with another currency through its principal
foreign exchange trading office at approximately 11:00 a.m. on the date two
Business Days prior to the date as of which the foreign exchange computation is
made; provided that such Administrative Agent or such L/C Issuer may obtain such
spot rate from another financial institution designated by such Administrative
Agent or such 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 such 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 or any Canadian Letter of
Credit denominated in Dollars.
24
"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. For purposes of the Loan Documents, the term "Subsidiary" shall not
include any "SPE".
"Subsidiary Guarantors" means, collectively, Greenbrier Leasing Company
LLC, Greenbrier Railcar LLC, Autostack Company LLC, Gunderson LLC, Gunderson
Rail Services LLC, Gunderson Marine LLC, Greenbrier-Concarril, LLC, Greenbrier
Leasing Limited Partner, LLC, Greenbrier Management Services, LLC, Meridian Rail
Holdings Corp., Meridian Rail Acquisition Corp., Meridian Rail Mexico City
Corp., Brandon Railroad, LLC and each other Subsidiary that becomes a Subsidiary
Guarantor after the date of this Agreement in accordance with Section 6.13.
"Subsidiary Guaranty" means the Subsidiary Guaranty made by each of the
Subsidiary Guarantors in favor of the Administrative Agents 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, 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 Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
"Swing Line Lender" means the U.S. Swing Line Lender or the Canadian Swing
Line Lender, as appropritate.
25
"Swing Line Loan" means any U.S. Swing Line Loan or Canadian Swing Line
Loan, as appropriate.
"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.
"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 applicable 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" has the meaning specified in Section 7.03(d).
"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 Canadian Outstandings" means the aggregate Outstanding Amount of all
Canadian Committed Loans, Canadian L/C Obligations, Canadian Swing Line Loans
and Overdrafts.
"Total U.S. Outstandings" means the aggregate Outstanding Amount of all
U.S. Committed Loans, U.S. Swing Line Loans and U.S. L/C Obligations.
"Treasury Management Agreement" means any agreement governing the provision
of treasury or cash management services, including deposit accounts, funds
transfer, automated clearinghouse, zero balance accounts, returned check
concentration, controlled disbursement, lockbox, account reconciliation and
reporting and trade finance services.
"TWI" has the meaning specified in the introductory paragraph hereto.
"Type" means, with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurocurrency Rate Loan.
"U.S. Administrative Agent" means Bank of America, acting as United States
administrative agent under any of the Loan Documents, or any successor United
States administrative agent.
"U.S. Administrative Agent's Office" means, with respect to any currency,
the U.S. 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 U.S. Administrative Agent may from
time to time notify to the Company and the Lenders.
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"U.S. Borrowing Base" means, as of any date of determination, with respect
to the assets of the Company and the Subsidiary Guarantors, the sum of (i) 90%
(or, if at such time the Consolidated Capitalization Ratio as of the last day of
the most recently ended fiscal quarter exceeded 0.70 to 1.00, 85%) 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. Commitment" means, as to each U.S. Lender, its obligation to (a) make
U.S. Committed Loans to the Company pursuant to Section 2.01(a), (b) purchase
participations in U.S. L/C Obligations, and (c) purchase participations in U.S.
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the Dollar amount set forth opposite such U.S. Lender's name on
Schedule 2.01 or in the Assignment and Assumption or other documentation
pursuant to which such U.S. Lender becomes a party hereto, as applicable, as
such amount may be adjusted from time to time in accordance with this Agreement.
"U.S. Committed Loan" has the meaning specified in Section 2.01(a). Subject
to the definition of "Base Rate Loan", U.S. Committed Loans may be denominated
in Dollars or Alternative Currencies.
"U.S. L/C Issuer" means Bank of America, or any successor issuer of U.S.
Letters of Credit.
"U.S. L/C Obligations" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding U.S. Letters of
Credit plus the aggregate of all Unreimbursed Amounts with respect to U.S.
Letters of Credit, including L/C Borrowings. For purposes of computing the
amount available to be drawn under any U.S. Letter of Credit, the amount of such
U.S. 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 U.S. 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 U.S. Letter of Credit
shall be deemed to be "outstanding" in the amount so remaining available to be
drawn.
"U.S. Lender" means, at any time, a Lender that has a U.S. Commitment.
"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 Aggregate U.S.
Commitments.
"U.S. Letter of Credit" means a standby or commercial letter of credit
issued under the U.S. Revolving Credit Facility. U.S. Letters of Credit may be
issued in Dollars or in Alternative Currencies.
"U.S. Revolver Ceiling" means the amount that is the lesser of (a) the
Aggregate U.S. Commitments; or (b) the amount available under the U.S. Borrowing
Base.
"U.S. Revolving Credit Facility" means the multiple advance revolving
credit facility made available to the Company pursuant to Article II.
"U.S. Swing Line Lender" means Bank of America, or any successor U.S. Swing
Line Lender hereunder.
"U.S. Swing Line Loan" has the meaning specified in Section 2.04(a).
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"U.S. 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 U.S.
Swing Line Sublimit is part of, and not in addition to, the Aggregate U.S.
Commitments.
"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" means, with respect to any drawing under a Letter of
Credit that is not reimbursed by the applicable Borrower in accordance with
Section 2.03(c)(i), the amount of such unreimbursed drawing.
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."
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(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 U.S. 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 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 U.S. 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) Calculations; Consolidation of Variable Interest Entities.
Notwithstanding the above, the parties hereto acknowledge and agree that all
calculations of the financial covenants in Section 7.11 (including for purposes
of determining the Applicable Rate) shall be made on a Pro Forma Basis. 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 applicable Administrative Agent or the applicable L/C Issuer, as
applicable, shall determine the Spot Rates as of each Revaluation Date to be
used for calculating Dollar Equivalent amounts of Credit Extensions and
Outstanding Amounts under the U.S. Revolving Credit Facility and Canadian Dollar
Equivalent amounts of Credit Extensions and Outstanding Amounts under the
Canadian Revolving Credit Facility. 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 for purposes of the Loan
Documents shall be such Dollar Equivalent amount as so determined by the
applicable Administrative Agent or the applicable L/C Issuer, as applicable.
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(b) Wherever in this Agreement in connection with a Committed Borrowing,
conversion, continuation or prepayment of a 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 or Canadian Dollars, as applicable, but
such Committed Borrowing, Loan or Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Dollar Equivalent or
Canadian Dollar Equivalent, as applicable, of such amount (rounded to the
nearest unit of such Alternative Currency, with 0.5 of a unit being rounded
upward), as determined by the applicable Administrative Agent or the applicable
L/C Issuer, as the case may be.
1.05 ADDITIONAL ALTERNATIVE CURRENCIES.
(a) The Company may from time to time request that Eurocurrency Rate Loans
under the U.S. Revolving Credit Facility 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 that is readily available and freely transferable and convertible into
Dollars or, if applicable Canadian 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 U.S. Administrative Agent and the Lenders that would be
obligated to make Credit Extensions denominated in such requested currency; 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 applicable
Administrative Agent and the applicable L/C Issuer.
(b) Any such request shall be made to the applicable 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 such
Administrative Agent and, in the case of any such request pertaining to Letters
of Credit, the applicable L/C Issuer, in its or their sole discretion). In the
case of any such request pertaining to Eurocurrency Rate Loans, the U.S.
Administrative Agent shall promptly notify each Lender thereof; and in the case
of any such request pertaining to Letters of Credit, the applicable
Administrative Agent shall promptly notify the applicable L/C Issuer thereof.
Each affected Lender (in the case of any such request pertaining to Eurocurrency
Rate Loans) or the applicable L/C Issuer (in the case of a request pertaining to
Letters of Credit) shall notify the applicable Administrative Agent, not later
than 11:00 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 an 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 U.S. Administrative Agent
and all the Lenders that would be obligated to make Credit Extensions
denominated in such requested currency consent to making Eurocurrency Rate Loans
in such requested currency, the U.S. 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 U.S. Committed Borrowings of
Eurocurrency Rate Loans; and if the applicable Administrative Agent and the
applicable L/C Issuer consent to the issuance of Letters of Credit in such
requested currency, such 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
applicable Administrative Agent shall fail to obtain consent to any request for
an additional currency under this Section 1.05, such 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.
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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
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 applicable 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 applicable 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
with respect thereto.
1.08 LETTER OF CREDIT AMOUNTS.
Unless otherwise specified herein, the amount of a U.S. Letter of Credit at
any time shall be deemed to be the Dollar Equivalent of the stated amount of
such U.S. Letter of Credit in effect at such time and the amount of a Canadian
Letter of Credit at any time shall be deemed to be the Canadian Dollar
Equivalent of the stated amount of such Canadian 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 or Canadian Dollar
Equivalent, as applicable, 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.
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ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS.
(a) U.S. Revolving Credit Facility. Subject to the terms and conditions set
forth herein, each U.S. Lender severally agrees to make loans (each such loan, a
"U.S. Committed Loan") to the Company 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 U.S. Lender's U.S. Commitment; provided, however, that after giving
effect to any Borrowing of U.S. Committed Loans, (i) the Total U.S. Outstandings
shall not exceed the U.S. Revolver Ceiling, and (ii) the aggregate Outstanding
Amount of the U.S. Committed Loans of any U.S. Lender, plus such U.S. Lender's
Applicable Percentage of the Outstanding Amount of all U.S. L/C Obligations,
plus such U.S. Lender's Applicable Percentage of the Outstanding Amount of all
U.S. Swing Line Loans shall not exceed such Lender's U.S. Commitment, and (iii)
the aggregate Outstanding Amount of all U.S. Committed Loans denominated in
Alternative Currencies shall not exceed the Alternative Currency Sublimit.
Within the limits of each U.S. Lender's U.S. Commitment, and subject to the
other terms and conditions hereof, the Company may borrow under this Section
2.01(a), prepay under Section 2.06, and reborrow under this Section 2.01(a).
Each Borrowing of U.S. Committed Loans under the U.S. Revolving Credit Facility
shall be made as provided in Section 2.02 below. U.S. Committed Loans may be
Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
(b) Canadian Revolving Credit Facility. Subject to the terms and conditions
set forth herein, each Canadian Lender severally agrees to make loans (each such
loan, a "Canadian Committed Loan") to TWI in Canadian Dollars or Dollars 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
Canadian Lender's Canadian Commitment; provided, however, that after giving
effect to any Borrowing of Canadian Committed Loans, (i) the Total Canadian
Outstandings shall not exceed the Canadian Revolver Ceiling, and (ii) the
aggregate Outstanding Amount of the Canadian Committed Loans of any Canadian
Lender, plus such Canadian Lender's Applicable Percentage of the Outstanding
Amount of all Canadian L/C Obligations, plus such Canadian Lender's Applicable
Percentage of the Outstanding Amount of all Canadian Swing Line Loans shall not
exceed such Lender's Canadian Commitment. Within the limits of each Canadian
Lender's Canadian Commitment, and subject to the other terms and conditions
hereof, TWI may borrow under this Section 2.01(b), prepay under Section 2.06,
and reborrow under this Section 2.01(b). Each Borrowing of Canadian Committed
Loans under the Canadian Revolving Credit Facility. Canadian 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 applicable Borrower's irrevocable notice to the applicable
Administrative Agent which may be given by telephone. In the case of U.S.
Committed Loans, each such notice must be received by the U.S. 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 U.S. Committed Loans
that are Eurocurrency Rate Loans denominated in Dollars or of any conversion of
any such Eurocurrency Rate Loans denominated in 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
U.S. Committed Loans that are Eurocurrency Rate
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Loans denominated in Alternative Currencies, and (iii) on the requested date of
any Borrowing of U.S. Committed Loans that are Base Rate Committed Loans. In the
case of Canadian Committed Loans, each such notice must be received by the
Canadian 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 Canadian Committed Loans that are Eurocurrency Rate Loans denominated in
Canadian Dollars or of any conversion of any such Eurocurrency Rate Loans
denominated in Canadian Dollars to Base Rate Committed Loans, (ii) four Business
Days prior to the requested date of any Borrowing of, conversion to or
continuation of Canadian Committed Loans that are Eurocurrency Rate Loans
denominated in Dollars or of any conversion of any such Eurocurrency Rate Loans
denominated in Dollars to Base Rate Committed Loans, and (iii) on the requested
date of any Borrowing of Canadian Committed Loans that are Base Rate Committed
Loans. Notwithstanding the foregoing, if a Borrower 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
applicable 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
U.S. Committed Loans that are Eurocurrency Rate Loans denominated in Dollars or
Canadian Committed Loans that are Eurocurrency Rate Loans denominated in
Canadian 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 U.S. Committed Loans that are Eurocurrency Rate
Loans denominated in Alternative Currencies or Canadian Committed Loans that are
Eurocurrency Rate Loans denominated in Dollars, whereupon the Administrative
Agent shall give prompt notice to the appropriate Lenders of such request and
determine whether the requested Interest Period is acceptable to all of them.
Not later than 11:00 a.m., on the applicable Business Day specified in the
immediately preceding sentence for which a request for such a Borrowing,
conversion or continuation must be received, the applicable Administrative Agent
shall notify the Borrower requesting such Interest Period (which notice may be
by telephone) whether or not the requested Interest Period has been consented to
by all the appropriate Lenders. Each telephonic notice pursuant to this Section
2.02(a) must be confirmed promptly by delivery to the applicable Administrative
Agent of a written Committed Loan Notice, appropriately completed and signed by
a Responsible Officer of the applicable Borrower. Each Borrowing of, conversion
to or continuation of Eurocurrency Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof, in the case of
U.S. Committed Loans, and CDN$1,000,000 (or $1,000,000, as applicable) or a
whole multiple of CDN$500,000 (or $500,000, as applicable) in excess thereof, in
the case of Canadian Committed Loans. 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, in the case of U.S. Committed Loans, and CDN$500,000 (or
$500,000, as applicable) or a whole multiple of CDN$100,000 (or $100,000, as
applicable) in excess thereof, in the case of Canadian Committed Loans. Each
Committed Loan Notice (whether telephonic or written) shall specify (i) whether
the applicable Borrower 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 U.S. Committed Loans so requested shall be made in Dollars.
If TWI fails to specify a currency in a Committed Loan Notice requesting a
Borrowing, then the Canadian Committed Loans so requested shall be made in
Canadian Dollars. If a Borrower fails to specify a Type of Committed Loan in a
Committed Loan Notice or if a Borrower 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 (i) in the case of
a failure to timely request a
33
continuation of U.S. 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 and (ii) in the case of a failure
to timely request a continuation of Canadian Committed Loans, 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 a Borrower 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
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 under the U.S. Revolving
Credit Facility, the U.S. Administrative Agent shall promptly notify each U.S.
Lender of the amount (and currency) of its Applicable Percentage of the
applicable U.S. Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Company, the U.S. Administrative Agent shall
notify each U.S. Lender of the details of any automatic conversion to Base Rate
Loans or continuation of U.S. Committed Loans denominated in a currency other
than Dollars, in each case as described in the preceding subsection. Following
receipt of a Committed Loan Notice under the Canadian Revolving Credit Facility,
the Canadian Administrative Agent shall promptly notify each Canadian Lender of
the amount (and currency) of its Applicable Percentage of the applicable
Canadian Committed Loans, and if no timely notice of a conversion or
continuation is provided by TWI, the Canadian Administrative Agent shall notify
each Canadian Lender of the details of any automatic conversion to Base Rate
Loans or continuation of Canadian Committed Loans, in each case as described in
the preceding subsection. In the case of a Committed Borrowing, each applicable
Lender shall make the amount of its Committed Loan available to the applicable
Administrative Agent in Same Day Funds at the U.S. Administrative Agent's Office
or the Canadian Administrative Agent's Office, as applicable, 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
applicable 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 applicable Administrative Agent shall make all
funds so received available to the applicable Borrower in like funds as received
by such 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) such Administrative Agent by such
Borrower; provided, however, that (A) if, on the date the Committed Loan Notice
with respect to a Borrowing of U.S. Committed Loans denominated in Dollars is
given by the Company, the Company has outstanding L/C Borrowings, 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 Company as
provided above and (B) if, on the date the Committed Loan Notice with respect to
such Borrowing of Canadian Committed Loans is given by TWI, TWI has outstanding
L/C Borrowings, 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 TWI 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, (i) no Loans under
the U.S. Revolving Credit Facility 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 U.S. Lenders, and the Required
U.S. Lenders may demand that any or
34
all of the then outstanding U.S. Committed Loans that are 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 and (ii) no Loans under the
Canadian Revolving Credit Facility may be requested as, converted to or
continued as Eurocurrency Rate Loans (whether in Canadian Dollars or Dollars)
without the consent of the Required Canadian Lenders, and the Required Canadian
Lenders may demand that any or all of the then outstanding Canadian Committed
Loans that are Eurocurrency Rate Loans denominated in Dollars be prepaid, or
redenominated into Canadian Dollars in the amount of the Canadian Dollar
Equivalent thereof, on the last day of the then current Interest Period with
respect thereto.
(d) The applicable Administrative Agent shall promptly notify the
applicable Borrower and the applicable 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 applicable
Administrative Agent shall notify the applicable Borrower and the applicable
Lenders of any change in the 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 (i) eight Interest Periods
in effect with respect to U.S. Committed Loans and (ii) four Interest Periods in
effect with respect to Canadian Committed Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the U.S.
L/C Issuer agrees, in reliance upon the agreements of the U.S. 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 U.S. Letters of Credit denominated in Dollars or
in one or more Alternative Currencies for the account of the Company or its
Subsidiaries, and to amend or extend U.S. Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor
drawings under the U.S. Letters of Credit; (B) the Canadian L/C Issuer
agrees, in reliance upon the agreements of the Canadian 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 Canadian Letters of Credit denominated in Dollars or in one or more
Alternative Currencies for the account of TWI or its Subsidiaries, and to
amend or extend Canadian Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under the
Canadian Letters of Credit; (C) the U.S. Lenders severally agree to
participate in U.S. Letters of Credit issued under the U.S. Revolving
Credit Facility for the account of the Company or its Subsidiaries and any
drawings thereunder and (D) the Canadian Lenders severally agree to
participate in Canadian Letters of Credit issued under the Canadian
Revolving Credit Facility for the account of TWI or its Subsidiaries and
any drawings thereunder; provided that after giving effect to any L/C
Credit Extension with respect to any Letter of Credit, (u) the Total U.S.
Outstandings shall not exceed the U.S. Revolver Ceiling, (v) the Total
Canadian Outstandings shall not exceed the Canadian Revolver Ceiling, (w)
the aggregate Outstanding Amount of the U.S. Committed Loans of any U.S.
Lender, plus such U.S. Lender's Applicable Percentage of the Outstanding
Amount of all U.S. L/C Obligations, plus such Lender's Applicable
Percentage of the Outstanding Amount of all U.S. Swing Line Loans shall not
exceed such U.S. Lender's U.S. Commitment, and (x) the aggregate
Outstanding Amount of the
35
Canadian Committed Loans of any Canadian Lender, plus such Canadian
Lender's Applicable Percentage of the Outstanding Amount of all Canadian
L/C Obligations plus such Canadian Lender's Applicable Percentage of the
Outstanding Amount of all Canadian Swing Line Loans shall not exceed such
Canadian Lender's Canadian Commitment, (y) the Outstanding Amount of the
U.S. L/C Obligations shall not exceed the U.S. Letter of Credit Sublimit
and (z) the Outstanding Amount of the Canadian L/C Obligations shall not
exceed the Canadian Letter of Credit Sublimit. Each request by a Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by such Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, each Borrower's ability to obtain Letters of Credit
shall be fully revolving, and accordingly each Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto, and
from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the U.S.
Lenders or the Canadian Lenders, as applicable, have approved such
expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain such
L/C Issuer from issuing such Letter of Credit, or any Law applicable
to such L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction
over such L/C Issuer shall prohibit, or request that such L/C Issuer
refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon such L/C Issuer
with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which such L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall
impose upon such L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which such L/C Issuer
in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of such L/C Issuer;
(C) except as otherwise agreed by the applicable Administrative
Agent and such L/C Issuer, such Letter of Credit is in an initial
stated amount less than (1) $100,000, in the case of a commercial U.S.
Letter of Credit, (2) $250,000, in the case of a standby U.S. Letter
of Credit, (3) CDN$100,000, in the case of a commercial Canadian
Letter of Credit, or (4) CDN$250,000, in the case of a standby
Canadian Letter of Credit;
(D) except as otherwise agreed by the applicable Administrative
Agent and the such L/C Issuer, such Letter of Credit is to be
denominated in a currency other than Dollars or an Alternative
Currency;
36
(E) such L/C Issuer does not as of the issuance date of such
requested Letter of Credit issue Letters of Credit in the requested
currency;
(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 U.S. Lender's or Canadian Lender's
obligations, as applicable, to fund under Section 2.03(c) exists or
any U.S. Lender or Canadian Lender, as applicable, is at such time a
Defaulting Lender hereunder, unless such L/C Issuer has entered into
satisfactory arrangements with the applicable Borrower or such Lender
to eliminate such L/C Issuer's risk with respect to such Lender.
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer
would not be permitted at such time to issue such Letter of Credit in its
amended form under the terms hereof.
(v) No L/C Issuer shall be under any obligation to amend any Letter of
Credit if (A) such L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The U.S. L/C Issuer shall act on behalf of the U.S. Lenders with
respect to any U.S. Letters of Credit issued by it and the documents
associated therewith. The Canadian L/C Issuer shall act on behalf of the
Canadian Lenders with respect to any Canadian Letters of Credit issued by
it and the documents associated therewith. Each L/C Issuer shall have all
of the benefits and immunities (A) provided to each Administrative Agent in
Article IX with respect to any acts taken or omissions suffered by such L/C
Issuer in connection with Letters of Credit issued by it or proposed to be
issued by it and Issuer Documents pertaining to such Letters of Credit as
fully as if the term "Administrative Agent" as used in Article IX included
such L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to such 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 applicable Borrower delivered to the applicable
L/C Issuer (with a copy to the applicable Administrative Agent) in the form
of a Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of such Borrower. In the case of a request relating to
a U.S. Letter of Credit, such Letter of Credit Application must be received
by the U.S. L/C Issuer and the U.S. Administrative Agent not later than
10:00 a.m. at least two Business Days (or such later date and time as the
U.S. Administrative Agent and the U.S. 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 relating to
a Canadian Letter of Credit, such Letter of Credit Application must be
received by the Canadian L/C Issuer and the Canadian Administrative Agent
not later than 10:00 a.m. at least two Business Days (or such later date
and time as the Canadian Administrative Agent and the Canadian 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 applicable L/C Issuer: (A) the proposed issuance date
of the requested Letter of Credit (which shall be a
37
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 applicable 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
applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the
applicable L/C Issuer may require. Additionally, the applicable Borrower
shall furnish to the applicable L/C Issuer and the applicable
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the applicable L/C Issuer or the applicable Administrative
Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
applicable L/C Issuer will confirm with the applicable Administrative Agent
(by telephone or in writing) that such Administrative Agent has received a
copy of such Letter of Credit Application from the applicable Borrower and,
if not, such L/C Issuer will provide such Administrative Agent with a copy
thereof. Unless the applicable L/C Issuer has received written notice from
any Lender, the applicable 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, such L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the applicable Borrower (or the
applicable Subsidiary) or enter into the applicable amendment, as the case
may be, in each case in accordance with such L/C Issuer's usual and
customary business practices. Immediately upon the issuance of each U.S.
Letter of Credit, each U.S. Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the U.S. L/C
Issuer a risk participation in such U.S. Letter of Credit in an amount
equal to the product of such U.S. Lender's Applicable Percentage times the
amount of such U.S. Letter of Credit. Immediately upon the issuance of each
Canadian Letter of Credit, each Canadian Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the
Canadian L/C Issuer a risk participation in such Canadian Letter of Credit
in an amount equal to the product of such Canadian Lender's Applicable
Percentage times the amount of such Canadian Letter of Credit.
(iii) If a Borrower so requests in any applicable Letter of Credit
Application, the applicable L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic extension
provisions (each, an "Auto-Extension Letter of Credit"); provided that any
such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent
any such extension at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior notice
to the beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the applicable L/C
Issuer, a Borrower shall not be required to make a specific request to such
L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit
has been issued, the U.S. Lenders or the Canadian Lenders, as applicable,
shall be deemed to have authorized (but may not require) the applicable L/C
Issuer to permit the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration Date; provided,
however, that such L/C Issuer shall not permit any such extension if (A)
such 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
38
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 applicable Administrative Agent that the Required U.S. Lenders, in
the case of any U.S. Letter of Credit, or the Required Canadian Lenders, in
the case of any Canadian Letter of Credit, have elected not to permit such
extension or (2) from the applicable Administrative Agent, any Lender or a
Borrower that one or more of the applicable conditions specified in Section
4.02 is not then satisfied, and in each such case directing such L/C Issuer
not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the applicable L/C Issuer will also deliver to
the applicable Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.
(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 applicable L/C Issuer
shall notify the applicable Borrower and the applicable Administrative
Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, the applicable Borrower shall reimburse the
applicable L/C Issuer in such Alternative Currency, unless (A) such L/C
Issuer (at its option) shall have specified in such notice that it will
require reimbursement in Dollars (or, in the case of Canadian Letters of
Credit, Canadian Dollars), or (B) in the absence of any such requirement
for reimbursement in Dollars (or Canadian Dollars), such Borrower shall
have notified such L/C Issuer promptly following receipt of the notice of
drawing that it will reimburse such L/C Issuer in Dollars, 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 applicable L/C Issuer shall
notify the applicable Borrower of the Dollar Equivalent, or Canadian Dollar
Equivalent 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 applicable L/C Issuer under a Letter of Credit to be
reimbursed in Dollars, or the Applicable Time on the date of any payment by
such L/C Issuer under a Letter of Credit to be reimbursed in an Alternative
Currency (each such date, an "Honor Date"), the applicable Borrower shall
reimburse such L/C Issuer through the applicable Administrative Agent in an
amount equal to the amount of such drawing and in the applicable currency.
If the Company fails to so reimburse the U.S. L/C Issuer by such time in
the case of a U.S. Letter of Credit, the U.S. Administrative Agent shall
promptly notify each U.S. Lender of the Honor Date, the Unreimbursed Amount
(expressed in Dollars in the amount of the Dollar Equivalent thereof in the
case of a U.S. Letter of Credit denominated in an Alternative Currency) and
the amount of such U.S. Lender's Applicable Percentage thereof. If TWI
fails to so reimburse the Canadian L/C Issuer by such time in the case of a
Canadian Letter of Credit, the Canadian Administrative Agent shall promptly
notify each Canadian Lender of the Honor Date, the Unreimbursed Amount
(expressed in Canadian Dollars in the amount of the Canadian Dollar
Equivalent thereof in the case of a Canadian Letter of Credit denominated
in an Alternative Currency) and the amount of such Canadian Lender's
Applicable Percentage thereof. In such event, the applicable Borrower 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 U.S. Revolving Credit Facility or the Canadian
Revolving Credit Facility, as applicable, and the conditions set forth in
Section 4.02 (other than the delivery of a
39
Committed Loan Notice). In no event may a Borrower extend the time for
reimbursing any drawing under a commercial Letter of Credit by obtaining a
banker's acceptance from the applicable L/C Issuer. Any notice given by an
L/C Issuer or an 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) (A) Each U.S. Lender shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the U.S. Administrative Agent for
the account of the U.S. L/C Issuer, in Dollars, at the U.S.
Administrative Agent's Office 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 U.S. Administrative
Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each U.S. Lender that so makes funds available shall be deemed to have
made a Base Rate Committed Loan to the Company in such amount. The
U.S. Administrative Agent shall remit the funds so received to the
U.S. L/C Issuer in Dollars.
(B) Each Canadian Lender shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the Canadian Administrative
Agent for the account of the Canadian L/C Issuer, in Canadian Dollars,
at the Canadian Administrative Agent's Office 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
Canadian Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Canadian Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to
TWI in such amount. The Canadian Administrative Agent shall remit the
funds so received to the Canadian L/C Issuer in Canadian 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 applicable Borrower shall be deemed to have incurred from the
applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at the
Default Rate. In such event, each applicable Lender's payment to the
applicable Administrative Agent for the account of the applicable L/C
Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect
of its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Lender in satisfaction of its participation obligation
under this Section 2.03.
(iv) Until each applicable Lender funds its Committed Loan or L/C
Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C
Issuer for any amount drawn under any Letter of Credit, interest in respect
of such Lender's Applicable Percentage of such amount shall be solely for
the account of the applicable L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C Advances
to reimburse the applicable L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.03(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against such L/C Issuer, a Borrower, 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,
40
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 of a Committed Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of a Borrower to
reimburse the applicable L/C Issuer for the amount of any payment made by
such L/C Issuer under any Letter of Credit, together with interest as
provided herein.
(vi) If any Lender fails to make available to the applicable
Administrative Agent for the account of the applicable L/C Issuer any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Lender
(acting through the applicable Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to such
L/C Issuer at a rate per annum equal to the applicable Overnight Rate from
time to time in effect. A certificate of the applicable L/C Issuer
submitted to any Lender (through the applicable Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.
(d) Repayment of Participations.
(i) At any time after an L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with Section 2.03(c), if the
applicable Administrative Agent receives for the account of such L/C Issuer
any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the applicable Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by such
Administrative Agent), such 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) and in the same funds as those
received by such Administrative Agent.
(ii) If any payment received by an Administrative Agent for the
account of the applicable L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section
10.05 (including pursuant to any settlement entered into by the L/C Issuer
in its discretion), each applicable Lender shall pay to such Administrative
Agent for the account of the applicable L/C Issuer its Applicable
Percentage thereof on demand of such 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 applicable Borrower to
reimburse the applicable 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 a Borrower 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
41
be acting), such 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 such 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 such
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 applicable
Borrower 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, a
Borrower 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 noncompliance with such Borrower's instructions or other
irregularity, such Borrower will promptly notify the applicable L/C Issuer. The
Company, or TWI, as applicable, shall be conclusively deemed to have waived any
such claim against the applicable L/C Issuer and its correspondents unless such
notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender, the Company and TWI agree that, in
paying any drawing under a Letter of Credit, the applicable 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 Issuers, the Administrative Agents, any of their respective Related Parties
nor any correspondent, participant or assignee of an 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, the Required U.S. Lenders or the
Required Canadian 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 Issuers, the Administrative Agents, any of
their respective Related Parties nor any correspondent, participant or assignee
of an 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 applicable L/C Issuer, and such L/C
Issuer may be liable to the Company, or TWI, as applicable, to the extent, but
only
42
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 such L/C Issuer's willful misconduct or gross
negligence or such 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, an 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 such 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 applicable Administrative
Agent, if, as of the Letter of Credit Expiration Date, any L/C Obligation for
any reason remains outstanding, the applicable Borrower shall immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations of such
Borrower.
(ii) In addition, (A) if the U.S. Administrative Agent notifies the
Company at any time that the Outstanding Amount of all U.S. L/C Obligations
at such time exceeds the U.S. Letter of Credit Sublimit then in effect or
(B) if the Canadian Administrative Agent notifies TWI at any time that the
Outstanding Amount of all Canadian L/C Obligations at such time exceeds the
Canadian Letter of Credit Sublimit then in effect, then in each case,
within two Business Days after receipt of such notice, the applicable
Borrower shall Cash Collateralize its L/C Obligations in an amount equal to
the amount of such excess.
(iii) The applicable Administrative Agent may, at any time and from
time to time after the initial deposit of Cash Collateral, request that
additional Cash Collateral be provided in order to protect against the
results of exchange rate fluctuations.
(iv) 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 applicable Administrative
Agent, for the benefit of the applicable L/C Issuer and the applicable
Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance reasonably
satisfactory to such Administrative Agent and such L/C Issuer (which
documents are hereby consented to by the Lenders). Derivatives of such term
have corresponding meanings. Each Borrower hereby grants to the applicable
Administrative Agent, for the benefit of the applicable L/C Issuer and the
applicable 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
applicable L/C Issuer and the applicable Borrower 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 U.S. Letters of Credit, the
Company shall pay to the U.S. Administrative Agent for the account of each U.S.
Lender in accordance with its Applicable
43
Percentage, in Dollars, a Letter of Credit Fee (i) for each commercial U.S.
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 U.S. Letter of Credit, and
(ii) for each standby U.S. Letter of Credit equal to the Applicable Rate times
the Dollar Equivalent of the daily amount available to be drawn under such U.S.
Letter of Credit. With regard to Canadian Letters of Credit, TWI shall pay to
the Canadian Administrative Agent for the account of each Canadian Lender in
accordance with its Applicable Percentage, in Canadian Dollars, a Letter of
Credit Fee (i) for each commercial Canadian Letter of Credit equal to 0.125% of
1% per annum times the Canadian Dollar Equivalent of the daily amount available
to be drawn under such Canadian Letter of Credit, and (ii) for each standby
Canadian Letter of Credit equal to the Applicable Rate times the Canadian Dollar
Equivalent of the daily amount available to be drawn under such Canadian Letter
of Credit. 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 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. Subject to the penultimate sentence of this subsection (j), the Company
or TWI, as applicable, shall pay directly to the applicable 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 or TWI, as applicable, and the applicable 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 in respect of any U.S. Letter of Credit 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. Such fronting fee in respect of any Canadian Letter of
Credit shall be due and payable on the last Business Day 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. Notwithstanding the forgoing, no fronting fee shall be paid in respect of
Canadian Letters of Credit at such times as Bank of America is the sole Canadian
Lender. In addition, the Company, or TWI, as applicable, shall pay directly to
the applicable 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 such L/C Issuer
relating to letters of credit as from time to time in effect; such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
44
(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 or TWI, as
applicable, shall be obligated to reimburse the applicable L/C Issuer hereunder
for any and all drawings under such Letter of Credit. Each Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of its
Subsidiaries inures to the benefit of such Borrower, and that such Borrower's
business derives substantial benefits from the businesses of such Subsidiaries.
2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
(i) the U.S. Swing Line Lender agrees, in reliance upon the agreements of the
other U.S. Lenders set forth in this Section 2.04, to make loans to the Company
in Dollars (each a "U.S. Swing Line Loan") 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 U.S. Swing Line Sublimit, notwithstanding the fact
that such U.S. Swing Line Loans, when aggregated with the Applicable Percentage
of the Outstanding Amount of U.S. Committed Loans and U.S. L/C Obligations of
the Lender acting as U.S. Swing Line Lender, may exceed the amount of such
Lender's U.S. Commitment, and (ii) the Canadian Swing Line Lender agrees, in
reliance upon the agreements of the other Canadian Lenders set forth in this
Section 2.04, to make loans to TWI in Canadian Dollars or Dollars (each a
"Canadian Swing Line Loan") 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 Canadian Swing Line Sublimit, notwithstanding the fact that
such Canadian Swing Line Loans, when aggregated with the Applicable Percentage
of the Outstanding Amount of Canadian Committed Loans and Canadian L/C
Obligations of the Lender acting as Swing Line Lender, may exceed the amount of
such Lender's Canadian Commitment; provided, however, that (1) after giving
effect to any U.S. Swing Line Loan, (A) the Total U.S. Outstandings shall not
exceed the U.S. Revolver Ceiling, and (B) the aggregate Outstanding Amount of
the U.S. Committed Loans of any U.S. Lender, plus such U.S. Lender's Applicable
Percentage of the Outstanding Amount of all U.S. L/C Obligations, plus such U.S.
Lender's Applicable Percentage of the Outstanding Amount of all U.S. Swing Line
Loans shall not exceed such U.S. Lender's U.S. Commitment and (2) after giving
effect to any Canadian Swing Line Loan, (A) the Total Canadian Outstandings
shall not exceed the Canadian Revolver Ceiling, and (B) the aggregate
Outstanding Amount of the Canadian Committed Loans of any Canadian Lender, plus
such Canadian Lender's Applicable Percentage of the Outstanding Amount of all
Canadian L/C Obligations, plus such Canadian Lender's Applicable Percentage of
the Outstanding Amount of all Canadian Swing Line Loans shall not exceed such
Canadian Lender's Canadian Commitment, and provided, further, that no Borrower
shall 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 applicable Borrower may borrow under this Section 2.04,
prepay under Section 2.06, and reborrow under this Section 2.04. Immediately
upon the making of a U.S. Swing Line Loan, each U.S. Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the U.S.
Swing Line Lender a risk participation in such U.S. Swing Line Loan in an amount
equal to the product of such U.S. Lender's Applicable Percentage times the
amount of such U.S. Swing Line Loan. Immediately upon the making of a Canadian
Swing Line Loan, each Canadian Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Canadian Swing Line Lender a
risk participation in such Canadian Swing Line Loan in an amount equal to the
product of such Canadian Lender's Applicable Percentage times the amount of such
Canadian Swing Line Loan. It is anticipated
45
that the Canadian Swing Line Loans will be used primarily by TWI to accommodate
Overdrafts. Overdrafts incurred by TWI shall constitute Borrowing of Canadian
Swing Line Loans.
(b) Borrowing Procedures. Each Borrowing of U.S. Swing Line Loans shall be
made upon the Company's irrevocable notice to the U.S. Swing Line Lender and the
U.S. Administrative Agent. Each Borrowing of Canadian Swing Line Loans (other
than Overdrafts) shall be made upon TWI's irrevocable notice to the Canadian
Swing Line Lender and the Canadian Administrative Agent. Each such notice may be
given by telephone and must be received by the applicable Swing Line Lender and
the applicable Administrative Agent not later than 1:00 p.m. (or 11:00 a.m., in
the case of Canadian Swing Line Loans) on the requested borrowing date, and
shall specify (i) the amount to be borrowed, which shall be a minimum of
$100,000 in the case of a U.S. Swing Line Loan and CDN$100,000 (or $100,000, as
applicable) in the case of a Canadian Swing Line Loan (such minimum amounts
shall not apply to Overdrafts under the Canadian Revolving Credit Facility),
(ii) the requested borrowing date, which shall be a Business Day and (iii) in
the case of a Canadian Swing Line Loan, the currency thereof. Each such
telephonic notice must be confirmed promptly by delivery to the applicable Swing
Line Lender and the applicable Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
applicable Borrower. Promptly after receipt by the applicable Swing Line Lender
of any telephonic Swing Line Loan Notice, such Swing Line Lender will confirm
with the applicable Administrative Agent (by telephone or in writing) that such
Administrative Agent has also received such Swing Line Loan Notice and, if not,
such Swing Line Lender will notify such Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the applicable Swing Line Lender has
received notice (by telephone or in writing) from the applicable Administrative
Agent (including at the request of any Lender) prior to 2:00 p.m. (or 12:00
noon, in the case of Canadian Swing Line Loans) on the date of the proposed
Swing Line Borrowing (A) directing such 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, such Swing Line Lender will, not later than 2:00
p.m. (or 12:00 noon, in the case of Canadian Swing Line Loans) on the borrowing
date specified in such Swing Line Loan Notice (or such other time as agreed by
the Canadian Swing Line Lender and TWI in the case of Overdrafts under the
Canadian Revolving Credit Facility), make the amount of its Swing Line Loan
available to the applicable Borrower at its office by crediting the account of
such Borrower on the books of such Swing Line Lender in Same Day Funds.
(c) Refinancing of Swing Line Loans.
(i) The U.S. Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Company (which hereby irrevocably
authorizes the U.S. Swing Line Lender to so request on its behalf), that
each U.S. Lender make a U.S. Committed Loan that is a Base Rate Committed
Loan in an amount equal to such U.S. Lender's Applicable Percentage of the
amount of U.S. Swing Line 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 U.S. Revolving Credit Facility and the conditions set forth
in Section 4.02. The Canadian Swing Line Lender at any time in its sole and
absolute discretion may request, on behalf of TWI (which hereby irrevocably
authorizes the Canadian Swing Line Lender to so request on its behalf),
that each Canadian Lender make a Canadian Committed Loan that is a Base
Rate Committed Loan in an amount equal to such Canadian Lender's Applicable
Percentage of the amount of Canadian Swing Line Loans then outstanding;
such request shall be made in writing (which written request shall be
deemed to be a Committed Loan Notice for
46
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 Canadian Revolving Credit Facility and the conditions set forth in
Section 4.02. The applicable Swing Line Lender shall furnish the applicable
Borrower with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the applicable Administrative Agent. Each
applicable Lender shall make an amount equal to its Applicable Percentage
of the amount specified in such Committed Loan Notice available to the
applicable Administrative Agent in Same Day Funds for the account of the
applicable Swing Line Lender at the U.S. Administrative Agent's Office for
Dollar-denominated payments or the Canadian Administrative Agent's Office
for Canadian Dollar-denominated payments, as applicable, not later than
10:00 a.m. (or 12:00 noon, in the case of Canadian Swing Line Loans) 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 applicable Borrower in such
amount. The applicable Administrative Agent shall remit the funds so
received to the applicable 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 applicable Swing
Line Lender as set forth herein shall be deemed to be a request by such
Swing Line Lender that each of the applicable Lenders fund its risk
participation in the relevant Swing Line Loan and each such Lender's
payment to the applicable Administrative Agent for the account of such
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 applicable
Administrative Agent for the account of the applicable 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), such Swing Line Lender shall be entitled to recover from such
Lender (acting through the applicable Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available to
such Swing Line Lender at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. A certificate of the applicable
Swing Line Lender submitted to any Lender (through the applicable
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 a Swing Line
Lender, a Borrower 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 applicable Borrower to repay Swing Line Loans,
together with interest as provided herein.
(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 applicable Swing Line Lender
receives any payment on account of such
47
Swing Line Loan, such 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 such Swing Line Lender.
(ii) If any payment received by a Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
such Swing Line Lender under any of the circumstances described in Section
10.05 (including pursuant to any settlement entered into by such Swing Line
Lender in its discretion), each applicable Lender shall pay to such Swing
Line Lender its Applicable Percentage thereof on demand of the applicable
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 applicable Administrative Agent will make
such demand upon the request of the applicable 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 applicable Swing Line
Lender shall be responsible for invoicing the applicable Borrower for interest
on its Swing Line Loans. Until each applicable Lender funds its 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 applicable Swing
Line Lender.
(f) Payments Directly to Swing Line Lender. Each Borrower shall make all
payments of principal and interest in respect of its Swing Line Loans directly
to the applicable Swing Line Lender.
2.05 SECURITY.
All Obligations of Borrowers under this Agreement and all other Loan
Documents shall be secured by the Collateral in accordance with the Loan
Documents.
2.06 PREPAYMENTS.
(a) The Company may, upon notice to the U.S. Administrative Agent, at any
time or from time to time voluntarily prepay U.S. Committed Loans in whole or in
part without premium or penalty; provided that (i) such notice must be received
by the U.S. Administrative Agent not later than 10:00 a.m. (A) three Business
Days prior to the requested date of prepayment of U.S. Committed Loans that are
Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five
Business Days in the case of a Special Notice Currency) prior to the requested
date of prepayment of U.S. Committed Loans that are Eurocurrency Rate Loans
denominated in Alternative Currencies, and (C) on the requested date of
prepayment of U.S. Committed Loans that are Base Rate Committed Loans. TWI may,
upon notice to the Canadian Administrative Agent, at any time or from time to
time voluntarily prepay Canadian Committed Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Canadian Administrative Agent not later than 10:00 a.m. (A) three Business Days
prior to the requested date of prepayment of Canadian Committed Loans that are
Eurocurrency Rate Loans denominated in Canadian Dollars, (B) four Business Days
prior to the requested date of prepayment of Canadian Committed Loans that are
Eurocurrency Rate Loans denominated in Dollars, and (C) on the requested date of
prepayment of Canadian Committed Loans that are Base Rate Committed Loans. Any
prepayment of Eurocurrency Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof in the case of
U.S. Committed Loans, and CDN$ 1,000,000 (or $1,000,000, as applicable) or a
whole multiple of CDN$ 1,000,000 (or $1,000,000, as applicable) in
48
excess thereof in the case of Canadian Committed Loans. 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 applicable Administrative Agent will promptly
notify each applicable 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 a Borrower, 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 applicable Lenders in accordance with
their respective Applicable Percentages.
(b) The applicable Borrower may, upon notice to the applicable Swing Line
Lender (with a copy to the applicable 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 such Swing
Line Lender and such 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 in the case of U.S. Swing Line Loans and CDN$100,000 in the
case of Canadian Swing Line Loans (such minimum amounts shall not apply to
Overdrafts under the Canadian Revolving Credit Facility). Each such notice shall
specify the date and amount of such prepayment. If such notice is given a
Borrower, such Borrower 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 U.S. Administrative Agent notifies the Company at any time that
the Total U.S. Outstandings at such time exceed the U.S. Revolver Ceiling, then,
within two Business Days after receipt of such notice, the Company shall prepay
U.S. Committed Loans, prepay U.S. Swing Line Loans and/or Cash Collateralize the
U.S. 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 the
U.S. Revolver Ceiling; provided, however, that, subject to the provisions of
Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize the
U.S. L/C Obligations pursuant to this Section 2.06(c) unless, after the
prepayment in full of all U.S. Committed Loans and U.S. Swing Line Loans, the
Total U.S. Outstandings exceed the U.S. Revolver Ceiling. The U.S.
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 Canadian Administrative Agent notifies TWI at any time that the
Total Canadian Outstandings at such time exceed the Canadian Revolver Ceiling,
then, within two Business Days after receipt of such notice, TWI shall prepay
Canadian Committed Loans, prepay Canadian Swing Line Loans and/or Cash
Collateralize the Canadian 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 the Canadian Revolver Ceiling; provided, however, that, subject to the
provisions of Section 2.03(g)(ii), TWI shall not be required to Cash
Collateralize the Canadian L/C Obligations pursuant to this Section 2.06(d)
unless, after the prepayment in full of the Canadian Committed Loans and
Canadian Swing Line Loans, the Total Canadian Outstandings exceed the Canadian
Revolver Ceiling. The Canadian 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.
(e) If the U.S. Administrative Agent notifies the Company at any time that
the Outstanding Amount of all U.S. Committed 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 Company
shall prepay its U.S. Committed Loans in an aggregate amount sufficient to
reduce such
49
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 (a) upon notice to the U.S. Administrative Agent, terminate
and/or from time to time permanently reduce the Aggregate U.S. Commitments
and/or (b) upon notice to the Canadian Administrative Agent, terminate and/or
from time to time permanently reduce the Aggregate Canadian Commitments;
provided that (i) any such notice shall be received by the applicable
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 $1,000,000 in excess
thereof, in the case of the Aggregate U.S. Commitments, and CDN$ 1,000,000 or
any whole multiple of CDN$ 1,000,000 in excess thereof, in the case of the
Aggregate Canadian Commitments, (iii) the Company shall not terminate or reduce
the Aggregate U.S. Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total U.S. Outstandings would exceed the
Aggregate U.S. Commitments, (iv) the Company shall not terminate or reduce the
Aggregate Canadian Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Canadian Outstandings would exceed
the Aggregate Canadian Commitments, (v) if, after giving effect to any reduction
of the Aggregate U.S. Commitments, the U.S. Letter of Credit Sublimit, the U.S.
Swing Line Sublimit or the Alternative Currency Sublimit exceeds the amount of
the Aggregate U.S. Commitments, such Sublimit shall be automatically reduced by
the amount of such excess, and (vi) if, after giving effect to any reduction of
the Aggregate Canadian Commitments, the Canadian Letter of Credit Sublimit or
the Canadian Swing Line Sublimit exceeds the amount of the Aggregate Canadian
Commitments, such Sublimit shall be automatically reduced by the amount of such
excess. The applicable Administrative Agent will promptly notify the applicable
Lenders of any such notice of termination or reduction of Commitments. The
amount of any such 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 U.S. Commitments and/or Aggregate Canadian Commitments shall be
applied to the appropriate Commitment of each affected Lender according to its
Applicable Percentage. All fees accrued until the effective date of any
termination of the Commitments shall be paid on the effective date of such
termination.
2.08 REPAYMENT of LOANS.
(a) Each Borrower shall repay to the applicable Lenders on the Maturity
Date the aggregate principal amount of Committed Loans made to such Borrower
outstanding on such date.
(b) The Company shall repay each U.S. 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.
(c) TWI shall repay (i) each Canadian Swing Line Loan that is not an
Overdraft on the earlier to occur of (A) the date ten Business Days after such
Loan is made and (B) the Maturity Date and (ii) each Overdraft on 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
50
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; (iii) each U.S. 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%) and (iv) each
Canadian Swing Line Loan (A) that is not an Overdraft 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%) and (B) that is
an Overdraft shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum established by the
Canadian Swing Line Lender and accepted by TWI.
(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 U.S. Lenders or
Required Canadian Lenders, as applicable, 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 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 U.S. Administrative Agent
for the account of each U.S. Lender in accordance with its Applicable
Percentage, a commitment fee in Dollars
51
equal to the Applicable Rate times the actual daily amount by which the
Aggregate U.S. Commitments exceed the sum of (i) the Outstanding Amount of U.S.
Committed Loans and (ii) the Outstanding Amount of U.S. L/C Obligations. TWI
shall pay to the Canadian Administrative Agent for the account of each Canadian
Lender in accordance with its Applicable Percentage, a commitment fee in
Canadian Dollars equal to the Applicable Rate times the actual daily amount by
which the Aggregate Canadian Commitments exceed the sum of (i) the outstanding
amount of Canadian Committed Loans and (ii) the outstanding number of Canadian
L/C Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
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.
(i) The Company shall pay to the Arranger, the U.S. Administrative
Agent and the Canadian Administrative Agent for their own respective
accounts, the 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 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.
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" as determined by the applicable Administrative Agent 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 applicable
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 applicable
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the applicable 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 otherwise
affect the obligation of the applicable Borrower hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between the
accounts and
52
records maintained by any Lender and the accounts and records of the applicable
Administrative Agent in respect of such matters, the accounts and records of
such Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender to a Borrower made through the applicable
Administrative Agent, such Borrower shall execute and deliver to such Lender
(through such 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 applicable 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
applicable Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of such 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, (i) all payments by the Company
hereunder (except with respect to principal of and interest on Loans denominated
in an Alternative Currency) shall be made to the U.S. Administrative Agent, for
the account of the respective Lenders to which such payment is owed, at the U.S.
Administrative Agent's Office in Dollars and in Same Day Funds not later than
1:00 p.m. on the date specified herein, (ii) all payments by the Company
hereunder with respect to principal and interest on Loans denominated in an
Alternative Currency shall be made to the U.S. Administrative Agent, for the
account of the respective Lenders to which such payment is owed, at the U.S.
Administrative Agent's Office in such Alternative Currency and in Same Day Funds
not later than the Applicable Time specified by the U.S. Administrative Agent on
the dates specified herein, (iii) all payments by TWI hereunder (except with
respect to principal of and interest on Loans denominated in Dollars) shall be
made to the Canadian Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Canadian Administrative Agent's
Office in Canadian Dollars and in Same Day Funds not later than 12:00 noon on
the date specified herein, and (iv) all payments by TWI hereunder with respect
to principal and interest on Loans denominated in Dollars shall be made to the
Canadian Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at the Canadian Administrative Agent's Office in
Dollars and in Same Day Funds not later 12:00 noon on the dates specified
herein. Without limiting the generality of the foregoing, the U.S.
Administrative Agent may require that any payments due from the Company under
this Agreement be made in the United States, and the Canadian Administrative
Agent may require that any payments due from TWI under this Agreement be made in
Canada. 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 applicable Administrative Agent will promptly
distribute to each applicable 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
applicable Administrative Agent (i) after 1:00 p.m., in the case of payments in
Dollars, or (ii) after the Applicable Time specified by such 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.
53
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
applicable 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 such Administrative Agent such Lender's share of such Committed
Borrowing, such 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 applicable Administrative
Agent, then the applicable Lender and the applicable Borrower severally agree to
pay to such 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 such 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 applicable
Administrative Agent for the same or an overlapping period, such 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 applicable Administrative Agent, then the amount so
paid shall constitute such Lender's Committed Loan included in such Committed
Borrowing. Any payment by the applicable 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 applicable Administrative Agent.
(ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless
the applicable Administrative Agent shall have received notice from the
applicable Borrower prior to the date on which any payment is due to such
Administrative Agent for the account of the applicable Lenders or the applicable
L/C Issuer hereunder that such Borrower will not make such payment, such
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 applicable Lenders or the applicable L/C Issuer, as the case
may be, the amount due. In such event, if the applicable Borrower has not in
fact made such payment, then each of the applicable Lenders or the applicable
L/C Issuer, as the case may be, severally agrees to repay to the applicable
Administrative Agent forthwith on demand the amount so distributed to such
Lender or such 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 such Administrative Agent, at the Overnight Rate.
A notice of the applicable Administrative Agent to any Lender or any
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 applicable Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this Article II, and such
funds are not made available to the applicable Borrower by such 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, such
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
54
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 each
Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in (i) the U.S. Committed Loans and subparticipations in U.S. L/C
Obligations and U.S. Swing Line Loans of the other U.S. Lenders if such Lender
is a U.S. Lender or (ii) the Canadian Committed Loans and subparticipations in
Canadian L/C Obligations and Canadian Swing Line Loans of the other Canadian
Lenders if such Lender is a Canadian Lender, or make such other adjustments as
shall be equitable, so that the benefit of all such payments shall be shared by
the applicable 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 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
each Administrative Agent (which shall promptly notify the applicable 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
55
Agents) 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 Agents 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 Agents 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 applicable Administrative
Agent and the applicable L/C Issuer (which approvals shall not be unreasonably
withheld), the Company may also invite additional Persons that qualify as
Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance reasonably satisfactory to the applicable Administrative Agent and its
counsel.
(d) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section, the Administrative Agents and the
Company shall determine the effective date (the "Increase Effective Date") and
the final allocation of such increase. The Administrative Agents 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 U.S. Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date 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 2.15, 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 applicable
Borrower shall prepay any of its 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
56
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) each 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 each
Administrative Agent, each Lender and each L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by such Administrative
Agent, such Lender or such L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to a Borrower by a Lender or
an L/C Issuer (with a copy to the applicable Administrative Agent), or by the
applicable Administrative Agent on its own behalf or on behalf of a Lender or an
L/C Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority,
such Borrower shall deliver to the applicable 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 applicable
Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
a Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Company (with a copy to the applicable
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Company or the applicable 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
applicable Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Company or such
Administrative Agent as will enable the Company or such 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 applicable 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 such 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,
57
(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
shareholder" of the applicable Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed copies
of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding
tax duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit a Borrower to determine the
withholding or deduction required to be made.
Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender's status for
U.S. withholding tax purposes, each Lender agrees promptly to deliver to the
applicable Administrative Agent or the Company, as such 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 applicable
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 applicable Administrative Agent or any Lender, as such
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 such Administrative Agent under such Laws in connection with any
payment by such 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 an Administrative Agent, any Lender or
an 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 such Administrative
Agent, such Lender or such L/C Issuer, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund), provided that each Borrower, upon the request of such
Administrative Agent, such Lender or such L/C Issuer, agrees to repay the amount
paid over to such Borrower (plus any penalties, interest or other cnarges
imposed by the relevant Governmental Authority) to such Administrative Agent,
such Lender or such L/C Issuer in the event such Administrative Agent, such
Lender or such L/C Issuer is required to repay such refund to such Governmental
Authority. This subsection shall not be construed to require an
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Administrative Agent, any Lender or an 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 any
Alternative Currency in the applicable interbank market, then, on notice thereof
by such Lender to the applicable Borrower through the applicable Administrative
Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans
in the affected currency or currencies or to convert Base Rate Committed Loans
to Eurocurrency Rate Loans, shall be suspended until such Lender notifies the
applicable Administrative Agent and the applicable Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, the applicable Borrower shall, upon demand from such Lender (with a
copy to the applicable Administrative Agent), prepay or, if applicable, 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 applicable Borrower 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 applicable Administrative Agent will promptly so notify the applicable
Borrower and each applicable Lender. Thereafter, the obligation of the
applicable Lenders to make or maintain Eurocurrency Rate Loans in the affected
currency or currencies shall be suspended until the applicable Administrative
Agent revokes such notice. Upon receipt of such notice, the applicable Borrower
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 contemplated by Section
3.04(e) and (B) the requirements of the Bank of England and the
59
Financial Services Authority or the European Central Bank reflected in the
Mandatory Cost, other than as set forth below) or an L/C Issuer;
(ii) subject any Lender or an L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurocurrency Rate Loan made by
it, or change the basis of taxation of payments to such Lender or such L/C
Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate
of, any Excluded Tax payable by such Lender or such L/C Issuer);
(iii) 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 an L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurocurrency Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Rate Loan (or of maintaining
its obligation to make any such Loan), or to increase the cost to such Lender or
such L/C Issuer of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or such L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or such L/C Issuer, the applicable
Borrower will pay to such Lender or such L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or such L/C Issuer,
as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or an L/C Issuer determines that
any Change in Law affecting such Lender or such L/C Issuer or any Lending Office
of such Lender or such Lender's or such L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or such L/C Issuer's capital or on the capital of
such Lender's or such L/C Issuer's holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by such L/C Issuer, to a level below that which such Lender or
such L/C Issuer or such Lender's or such L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
such L/C Issuer's policies and the policies of such Lender's or such L/C
Issuer's holding company with respect to capital adequacy), then from time to
time the applicable Borrower will pay to such Lender or such L/C Issuer, as the
case may be, such additional amount or amounts as will compensate such Lender or
such L/C Issuer or such Lender's or such L/C Issuer's holding company for any
such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or an L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or such L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the applicable Borrower
shall be conclusive absent manifest error. The applicable Borrower shall pay to
such Lender or such L/C Issuer, as the case may be, the amount shown as due on
any such certificate within 10 days after receipt thereof.
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(d) Delay in Requests. Failure or delay on the part of any Lender or an L/C
Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or such L/C Issuer's
right to demand such compensation, provided that no Borrower shall be required
to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
six months prior to the date that such Lender or such L/C Issuer, as the case
may be, notifies the applicable Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender's or such L/C Issuer's
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
six-month period referred to above shall be extended to include the period of
retroactive effect thereof).
(e) Additional Reserve Requirements. The applicable Borrower shall pay to
each applicable 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 applicable Borrower shall have
received at least 10 days' prior notice (with a copy to the applicable
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 applicable Administrative
Agent) from time to time, the applicable Borrower shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense incurred
by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by such Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by
such Borrower;
(c) any failure by such 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 applicable Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.
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For purposes of calculating amounts payable by a Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency
Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching
deposit or other borrowing in the offshore interbank market for such currency
for a comparable amount and for a comparable period, whether or not such
Eurocurrency Rate Loan was in fact so funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender 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. Such Borrower 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 obligations of the Borrowers 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 each L/C Issuer and each Lender to make its initial
Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:
(a) The U.S. Administrative Agent's receipt of the following, 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 U.S. Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement, the Security
Agreement, the Pledge Agreement and the Guaranties;
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(ii) Notes executed by the Borrowers in favor of each Lender
requesting Notes;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agents 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
Agents may reasonably require to evidence that each Loan Party is duly
organized or formed, and that each of the Loan Parties 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 U.S. Administrative Agent may
require to perfect the Lenders' first priority security interest in
the Collateral;
(vi) evidence that the U.S. 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;
(vii) favorable opinions of Tonkon Torp LLP and McInnes and
Cooper, counsels to the Loan Parties, addressed to the Administrative
Agents 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 the Company
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
the Loan Parties and the validity against the Loan Parties of the Loan
Documents, 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 have a Material Adverse Effect;
(x) calculations certified by a Responsible Officer of the
Company demonstrating compliance with the financial covenants set
forth in Section 7.11 on a Pro Forma Basis after giving effect to the
Meridian Acquisition;
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(xii) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect;
(xi) the U.S. 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
(xii) such other assurances, certificates, documents, consents or
opinions as the Administrative Agents, the L/C Issuers, the Swing Line
Lenders or the Required Lenders reasonably may require.
(b) Receipt by the U.S. Administrative Agent of evidence that all
governmental, shareholder and material third party consents and approvals
necessary in connection with the Meridian Acquisition have been obtained and all
applicable waiting periods have expired without any action being taken by any
authority that could restrain, prevent or impose any material adverse conditions
on the Meridian Acquisition or that could seek or threaten any of the foregoing,
and no law or regulation shall be applicable which in the judgment of the U.S.
Administrative Agent could have such effect.
(c) The Meridian Acquisition shall have been consummated in accordance with
the terms of the Purchase Agreement and in material compliance with applicable
law and regulatory approvals, all material conditions precedent to the
obligations of the buyer under the Purchase Agreement shall have been satisfied.
The aggregate purchase price (including any assumption of Indebtedness) shall
not exceed $227,500,000 (plus working capital adjustments provided under the
Purchase Agreement). The Purchase Agreement shall not have been materially
altered, amended or otherwise changed or supplemented in any material respect or
any material condition therein waived, without the prior written consent of the
U.S. Administrative Agent. The U.S. Administrative Agent shall have received an
executed copy of the Purchase Agreement certified as true and complete by a
Responsible Officer of the Company.
(d) There shall be at least $20,000,000 of undrawn availability under the
Aggregate U.S. Commitments and the U.S. Revolver Ceiling, which amounts would be
permitted to be drawn under Section 4.09(b)(1) of the Senior Debt Indenture.
(e) Any fees required to be paid on or before the Closing Date shall have
been paid.
(f) Unless waived by the U.S. Administrative Agent, the Company shall have
paid all fees, charges and disbursements of counsel to the Administrative Agents
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 Agents).
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 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 Agents shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
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4.02 CONDITIONS TO ALL CREDIT EXTENSIONS.
The obligation of each Lender and each L/C Issuer 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 applicable Administrative Agent and, if applicable, the applicable
L/C Issuer or the applicable 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 applicable
Administrative Agent, the Required U.S. Lenders (in the case of any U.S.
Committed Loans to be denominated in an Alternative Currency), the Required
Canadian Lenders (in the case of any Canadian Committed Loans to be denominated
in Dollars) or the applicable L/C Issuer (in the case of any Letter of Credit to
be denominated in an Alternative Currency) would make it impracticable for such
Credit Extension to be denominated in the relevant Alternative Currency.
(e) Such proposed Extension of Credit is permitted pursuant to Section
4.09(b)(1) of Senior Debt Indenture.
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 a Borrower shall be deemed
to be a representation and warranty that the conditions specified in Sections
4.02(a), (b) and (e) 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 Agents 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 May 31, 2006, 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.
(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) either individually or in the aggregate, if determined adversely,
is reasonably be expected to have a Material Adverse Effect.
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.
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 such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
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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.
Except as disclosed to the U.S. Administrative Agent and the Lenders in
writing prior to the Closing Date, 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.
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 an opinion
letter or 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.
As of the Closing Date, 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. As of the Closing Date, 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.
(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 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 U.S. 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 either 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.
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
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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 Agents 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 applicable Administrative Agent.
(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).
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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 U.S. Administrative Agent and each Lender, in form and
detail satisfactory to the U.S. 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, 2006), 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 Company'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 November 30, 2006), 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 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 not later than 75 days
after the beginning of each fiscal year of the Company, forecasts prepared
by management of the Company, in form reasonably satisfactory to the U.S.
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 quarterly basis for such fiscal year (including
the fiscal year in which the Maturity Date occurs).
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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 U.S. Administrative Agent and each Lender, in form and
detail reasonably satisfactory to the U.S. 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) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Company;
(c) promptly after any request by the U.S. 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 U.S. Administrative Agent pursuant hereto;
(e) promptly after the furnishing thereof, copies of any statement or
report furnished to any holder of debt securities of any Loan Party or any
Subsidiary thereof pursuant to the terms of any indenture, loan or credit
or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;
(f) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each notice
or other correspondence received from the SEC (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof;
(g) 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 U.S. 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, 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
72
updated Borrowing Base Certificate which incorporates the acquired or
pledged assets to reflect such assets on a pro-forma basis; and
(i) within thirty (30) days after closing of any offering of Term
Debt, a certificate signed by a Responsible Officer which confirms that (i)
such offering 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 each Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
an Administrative Agent); provided that: (i) the Company shall deliver paper
copies of such documents to the U.S. 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 U.S. Administrative Agent or such
Lender and (ii) the Company shall notify the U.S. Administrative Agent and each
Lender (by telecopier or electronic mail) of the posting of any such documents
and provide to the U.S. 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
U.S. Administrative Agent. Except for such Compliance Certificates, the U.S.
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 Agents and/or
the Arranger will make available to the Lenders and the L/C Issuers materials
and/or information provided by or on behalf of such Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to any Borrower or its
securities) (each, a "Public Lender"). Each Borrower hereby agrees that 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
Agents, the Arranger, the L/C Issuers and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to
the Borrowers or their respective securities for purposes of United States
Federal and state securities laws (provided, however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth in
Section 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 Agents 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."
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6.03 NOTICES. Promptly notify the Administrative Agents 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, 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.
Except for 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.
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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
Agents 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 Agents and each Lender, unless an Event of Default has
occurred and is continuing, and at such reasonable times during normal business
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 an
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
(including the Meridian Acquisition) 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.
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Notify the U.S. 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 U.S. Administrative Agent a counterpart of the Subsidiary
Guaranty or such other document as the U.S. Administrative Agent shall deem
appropriate for such purpose, and (b) deliver to the U.S. 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 U.S. 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.
6.14 PLEDGED ASSETS.
(a) Equity Interests. Cause 100% of the issued and outstanding Equity
Interests of each direct Domestic Subsidiary of each Subsidiary Guarantor, to be
subject at all times to a first priority, perfected Lien in favor of the U.S.
Administrative Agent pursuant to the terms and conditions of the Collateral
Documents, together with opinions of counsel and any filings and deliveries
reasonably necessary in connection therewith to perfect the security interests
therein, all in form and substance reasonably satisfactory to the U.S.
Administrative Agent.
(b) Other Property, (i) Cause all of the owned and leased personal property
(other than Excluded Property and Equity Interests of Subsidiaries not pledged
pursuant to subsection (a) above) of TWI and each Subsidiary Guarantor to be
subject at all times to first priority, perfected Liens in favor of the U.S.
Administrative Agent to secure the Obligations pursuant to the terms and
conditions of the Collateral Documents, subject in any case to Liens permitted
by Section 7.01 and (ii) deliver such other documentation as the U.S.
Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, appropriate UCC-1 financing statements,
landlord's waivers, certified resolutions and other organizational and
authorizing documents of such Person, favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above and the
perfection of the U.S. Administrative Agent's Liens thereunder) and other items
as may be reasonably requested by the U.S. Administrative Agent, all in form,
content and scope reasonably satisfactory to the Administrative Agent.
(c) In addition, the Loan Parties may pledge additional assets as
Collateral pursuant to additional Collateral Documents in form and substance
reasonably satisfactory to the U.S. Administrative Agent, together with such
other documentation as the U.S. Administrative Agent may reasonably request in
connection therewith. To the extent such additional Collateral satisfies the
applicable eligibility requirements, such Collateral shall be included in the
U.S. Borrowing Base and/or the Canadian Borrowing Base, as applicable.
(d) Collateral pledged by TWI shall only secure the Obligations of TWI.
ARTICLE VII
NEGATIVE COVENANTS
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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);
(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(d);
provided that such Liens do not at any time encumber any property other
than lease-related assets (including, but not limited to, rail cars, marine
barges and other surface transportation equipment, and related chattel
paper) that are excluded from both the U.S. Borrowing Base and the Canadian
Borrowing Base;
(j) Liens securing Indebtedness permitted under Section 7.03(e);
provided that (i) such Liens do not at any time encumber any property other
than the property financed by such
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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;
(k) Liens on assets of Foreign Subsidiaries organized in Europe
securing Indebtedness permitted under Section 7.03(f);
(l) Liens on assets of Foreign Subsidiaries (other than TWI) organized
in countries other than Europe securing Indebtedness permitted under
Section 7.03(g); and
(m) Liens in favor Loan Parties granted by any of Gunderson-Concarril
S.A. de C.V., Greenbrier-GIMSA, LLC or Gunderson-GIMSA S. de R.L. de C.V.
to secure any Indebtedness owed to a Loan Party.
7.02 INVESTMENTS.
Make any Investments, except:
(a) Investments held by the Company or such Subsidiary in the form of cash
equivalents or other investments permitted under 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;
(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 Subsidiaries that are not Subsidiary Guarantors and in
SPEs, in each case made after the Closing Date in an aggregate outstanding
amount not exceeding the sum of (i) $30,000,000 plus (ii) any excess amount of
Restricted Payments available to be paid pursuant to Section 7.06(d) that have
not been distributed and have not been invested pursuant to Section 7.02(g) or
7.02(j);
(g) Investments in Joint Ventures made after the Closing Date in an
aggregate outstanding amount not exceeding the sum of (i) $20,000,000 plus (ii)
any excess amount of Restricted Payments available to be paid pursuant to
Section 7.06(d) that have not been distributed and have not been invested
pursuant to Section 7.02(f) or 7.02(j);
(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
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equipment, in an aggregate amount for all Investments made pursuant to this
Section 7.02(i) not to exceed $20,000,000 at any time outstanding;
(i) purchases of Inventory by a Loan Party on behalf of any of
Gunderson-Concarril S.A. de C.V., Greenbrier-GIMSA, LLC or Gunderson-GIMSA S. de
R.L. de C.V.;
(j) Investments in Greenbrier-GIMSA, LLC or Gunderson-GIMSA S. de R.L. de
C.V. made after the Closing Date in an aggregate outstanding amount not
exceeding the sum of (i) $20,000,000 plus (ii) any excess amount of Restricted
Payments available to be paid pursuant to Section 7.06(d) that have not been
distributed and have not been invested pursuant to Section 7.02(f) or 7.02(g);
and
(k) Permitted Acquisitions.
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) obligations (contingent or otherwise) of the Company 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 contain any provision exonerating the non-defaulting party
from its obligation to make payments on outstanding transactions to the
defaulting party;
(d) private offerings of debt securities or long-term Indebtedness (but
excluding Guarantees thereof) to institutional investors or financial
institutions by the Loan Parties or other Domestic Subsidiaries which
Indebtedness (i) is secured by lease-related assets (including, but not limited
to, rail cars, marine barges and other surface transportation equipment, and
related chattel paper) that are excluded from both the U.S. Borrowing Base and
the Canadian Borrowing Base and (ii) if in a principal amount in excess of
$20,000,000, contains terms and conditions reasonably acceptable to the U.S.
Administrative Agent (any such Indebtedness, "Term Debt"); provided; however,
that the aggregate amount of all such Term Debt at any one time outstanding
pursuant to this subsection (d) shall not exceed $100,000,000;
(e) capital leases (including sale-leaseback transactions) or purchase
money obligations for fixed or capital assets (but excluding Guarantees
thereof), within the limitations set forth in Section 7.01(j), and in an
aggregate amount not to exceed $25,000,000 at any one time outstanding;
(f) Indebtedness of Foreign Subsidiaries organized in Europe incurred in
the ordinary course of business;
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(g) Indebtedness of Foreign Subsidiaries (other than TWI) organized in
countries other than Europe in an aggregate principal amount not to exceed
$35,000,000 at any one time outstanding;
(h) Guarantees given by the Company or any Subsidiary Guarantor in respect
of Indebtedness of the Company or any other Subsidiary Guarantor that is
otherwise permitted under this Section 7.03; and
(i) other unsecured Indebtedness, on terms reasonably acceptable to the
U.S. Administrative Agent, in an aggregate principal amount not to exceed
$150,000,000.
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 or TWI is
merging with another Subsidiary, the Subsidiary Guarantor or TWI, as applicable,
shall be the continuing or surviving Person;
(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 (other than TWI unless the consent of the Canadian
Lenders has been obtained) 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;
(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;
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(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, structured
finance or syndication transactions, provided that the Borrowers remain 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; and
(g) Dispositions pursuant to any sale-leaseback transactions under
Section 7.03(e);
provided, however, that any Disposition pursuant to clauses (a) through (g)
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; and
(d) the Company may declare or pay Restricted Payments after the
Closing Date in an aggregate amount not to exceed the sum of (i)
$25,000,000 plus (ii) 50% of the cumulative net income of the Company and
its Subsidiaries since August 31, 2006 minus (iii) all amounts available to
make Restricted Payments pursuant to this subsection (d) that have been
invested pursuant to Sections 7.02(f), 7.02(g) and 7.02(h).
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
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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 to
secure the Obligations; 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(d) or 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 August 31, 2006:
(a) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the Consolidated Fixed
Charge Coverage Ratio as of the end of any fiscal quarter of the Company to be
less than 1.75 to 1.00.
(b) CONSOLIDATED CAPITALIZATION RATIO. Permit the Consolidated
Capitalization Ratio as of the end of any fiscal quarter of the Company set
forth below to be greater than the ratio corresponding to such fiscal quarter:
CALENDAR YEAR FEBRUARY 28/29 MAY 31 AUGUST 31 NOVEMBER 30
- ------------- -------------- ------------ ------------ ------------
2006 n/a n/a n/a 0.75 to 1.0
2007 0.75 to 1.0 0.75 to 1.0 0.75 to 1.0 0.75 to 1.0
2008 0.75 to 1.0 0.725 to 1.0 0.725 to 1.0 0.725 to 1.0
2009 0.725 to 1.0 0.70 to 1.0 0.70 to 1.0 0.70 to 1.0
THEREAFTER 0.70 to 1.0 0.70 to 1.0 0.70 to 1.0 0.70 to 1.0
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
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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.
7.13 LIMITATIONS ON THE COMPANY.
Permit the Company to own any significant tangible assets that have not
been pledged as Collateral pursuant to the Collateral Documents other than (a)
Equity Interests of its Subsidiaries and (b) Investments in the form of cash
equivalents or other investments permitted under the Company's cash investment
policy as approved by the Company's board of directors.
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, 6.13 or 6.14 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 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,
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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
(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
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(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:
(a) the U.S. Administrative Agent shall, at the request of, or may, with
the consent of, the Required U.S. Lenders, take any or all of the following
actions:
(i) declare the commitment of each U.S. Lender to make Loans and any
obligation of the U.S. L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;
and
(ii) require that the Company Cash Collateralize the U.S. L/C
Obligations (in an amount equal to the then Outstanding Amount thereof);
(b) the Canadian Administrative Agent shall, at the request of, or may,
with the consent of, the Required Canadian Lenders, take any or all of the
following actions:
(i) declare the commitment of each Canadian Lender to make Loans and
any obligation of the Canadian L/C Issuer to make L/C Credit Extensions to
be terminated, whereupon such commitments and obligation shall be
terminated; and
(ii) require that TWI Cash Collateralize the Canadian L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(c) the U.S. Administrative Agent shall, at the request of, or may, with
the consent of, the Required Lenders, take any or all of the following actions:
(i) 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; and
(ii) 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 (or other applicable Debtor Relief Law), the obligation of each
Lender to make Loans and any obligation of each 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 each Borrower to
Cash Collateralize its L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of either 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
Obligations have automatically been required to be
85
Cash Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied 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 Agents and amounts payable under
Article III) payable to the Administrative Agents in their capacities as such;
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 Issuers (including fees, charges
and disbursements of counsel to the respective Lenders and the L/C Issuers
(including fees and time charges for attorneys who may be employees of any
Lender or an 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 and L/C Borrowings
and fees, premiums and scheduled periodic payments, and any interest accrued
thereon, due under any Swap Contract between any Loan Party and any Lender, or
any Affiliate of a Lender, to the extent such Swap Contract is permitted by
Section 7.03(c), ratably among the Lenders (and, in the case of such Swap
Contracts, Affiliates of Lenders) and the L/C Issuers in proportion to the
respective amounts described in this clause Third held by them;
Fourth, (a) payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, (b) payment of breakage, termination
or other payments, and any interest accrued thereon, due under any Swap Contract
between any Loan Party and any Lender, or any Affiliate of a Lender, to the
extent such Swap Contract is permitted by Section 7.03(c), (c) payments of
amounts due under any Treasury Management Agreement between any Loan Party and
any Lender, or any Affiliate of a Lender and (d) Cash Collateralize that portion
of L/C Obligations comprised of the aggregate undrawn amount of Letters of
Credit, ratably among the Lenders (and, in the case of such Swap Contracts,
Affiliates of Lenders) and the L/C Issuers in proportion to the respective
amounts described in this clause Fourth held by them; 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.
Notwithstanding the foregoing, (i) amounts recovered from TWI (including
proceeds of Collateral pledged by TWI) shall only be applied to Obligations
incurred by TWI and (ii) proceeds of Collateral pledged by the Company and the
Subsidiary Guarantors shall not be applied to Obligations incurred by TWI.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fourth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
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ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY.
Each of the Lenders and the L/C Issuers hereby irrevocably appoints Bank of
America to act on its behalf as the U.S. Administrative Agent and the Canadian
Administrative Agent hereunder and under the other Loan Documents and authorizes
each Administrative Agent to take such actions on its behalf and to exercise
such powers as are delegated to such Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agents, the Lenders and the L/C Issuers, and no Borrower shall
have rights as a third party beneficiary of any of such provisions.
9.02 RIGHTS AS A LENDER.
Each Person serving as an 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 an Administrative Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include each Person serving as an 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 an Administrative Agent hereunder and without any duty to account
therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS.
Neither 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, neither Administrative Agent:
(a) shall be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall 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 applicable
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 neither Administrative Agent shall be required to take any
action that, in its opinion or the opinion of its counsel, may expose such
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(c) shall, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, or shall 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 an Administrative Agent or any of its Affiliates in any
capacity.
Neither Administrative Agent shall 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
87
shall be necessary, or as such 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.
Neither Administrative Agent shall be deemed to have knowledge of any Default
unless and until notice describing such Default is given to such Administrative
Agent by the Company, a Lender or an L/C Issuer.
Neither Administrative Agent shall be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to such
Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
Each 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. Each 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 an L/C Issuer, the applicable Administrative Agent may presume
that such condition is satisfactory to such Lender or such L/C Issuer unless
such Administrative Agent shall have received notice to the contrary from such
Lender or such L/C Issuer prior to the making of such Loan or the issuance of
such Letter of Credit. Each 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.
Each 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 such Administrative Agent. Each
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 each 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.
Each Administrative Agent may at any time give notice of its resignation to
the Lenders, the L/C Issuers and the Company. Upon receipt of any such notice of
resignation, the requisite Lenders shall have the right, in consultation with
the Company, to appoint a successor, which, in the case of a successor U.S.
Administrative Agent, shall be a bank with an office in the United States, or an
Affiliate of any such bank
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with an office in United States and, in the case of a successor Canadian
Administrative Agent, shall be a bank with an office in the Canada, or an
Affiliate of any such bank with an office in Canada. If no such successor shall
have been so appointed 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 applicable Lenders and
the applicable L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if such 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)such retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by such
Administrative Agent on behalf of the Lenders or the L/C Issuers under any of
the Loan Documents, such 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 such Administrative Agent shall instead be made by or
to each applicable Lender and applicable L/C Issuer directly, until such time as
a successor Administrative Agent has been appointed as provided for above in
this Section. Upon the acceptance of a successor's appointment as an
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 such 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 a 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 such retiring Administrative Agent was acting as an Administrative Agent.
Any resignation by Bank of America as U.S. Administrative Agent pursuant to
this Section shall also constitute its resignation as U.S. L/C Issuer and U.S.
Swing Line Lender. Any resignation by Bank of America as Canadian Administrative
Agent pursuant to this Section shall also constitute its resignation as Canadian
L/C Issuer and Canadian Swing Line Lender. Upon the acceptance of a successor's
appointment as an 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 each L/C Issuer acknowledges that it has, independently and
without reliance upon either Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and each L/C Issuer also acknowledges that it will,
independently and without reliance upon either 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.
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9.08 NO OTHER DUTIES, ETC.
Anything herein to the contrary notwithstanding, none of the documentation
agents, syndication agents, 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 an
Administrative Agent, a Lender or an L/C Issuer hereunder.
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 Agents
(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 Agents shall have made any demand on
the applicable 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 arising under the Loan Documents that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders, the L/C Issuers and the
Administrative Agents (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuers and
the Administrative Agents and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuers and the Administrative
Agents 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 each L/C Issuer to make such payments to the applicable
Administrative Agent and, in the event that the applicable Administrative Agent
shall consent to the making of such payments directly to the Lenders and the L/C
Issuers, to pay to such Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of such Administrative Agent
and its agents and counsel, and any other amounts due such Administrative Agent
under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize either Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
an L/C Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize either
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 Issuers irrevocably authorize each Administrative
Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by such
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
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expiration or termination of all Letters of Credit, (ii) that is
transferred or to be transferred as part of or in connection with any
Disposition 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;
(b) to subordinate any Lien on any property granted to or held by such
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 either Administrative Agent at any time, the Required
Lenders will confirm in writing such 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 each 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) 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;
(b) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (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;
(d) change Section 2.14 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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(e) amend Section 1.06 or the definition of "Alternative Currency" without
the written consent of each Lender that is obligated to make Credit Extensions
in such Alternative Currency;
(f) change any provision of this Section or the definition of "Required
Lenders", "Required U.S. Lenders" or "Required Canadian Lenders" or change any
provision of this Section 10.01 without the written consent of each Lender
directly affected thereby;
(g) except in connection with a transaction permitted under Section 7.04 or
7.05, release all or substantially all of the value of the Subsidiary Guaranty
without the written consent of each Lender whose Obligations are Guaranteed
thereby;
(h) release all or substantially all of the Collateral in any transaction
or series of related transactions without the written consent of each Lender
whose Obligations are secured by such Collateral;
(i) without the consent of the Required U.S. Lenders, waive any Default for
purposes of Section 4.02 with respect to any Credit Extension under the U.S.
Revolving Credit Facility or amend or change any provision of this Section
10.01(i); or
(j) without the consent of the Required Canadian Lenders, waive any Default
for purposes of Section 4.02 with respect to any Credit Extension under the
Canadian Revolving Credit Facility or amend or change any provision of this
Section 10.01(j);
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable L/C Issuer in addition to the Lenders
required above, affect the rights or duties of such L/C Issuer under this
Agreement or any 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 applicable Swing Line Lender in addition to the Lenders
required above, affect the rights or duties of such Swing Line Lender under this
Agreement; (iii) no amendment, waiver or consent shall, unless in writing and
signed by the applicable Administrative Agent in addition to the Lenders
required above, affect the rights or duties of such 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, an Administrative Agent, an L/C Issuer or a
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.
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Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuers hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the applicable Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender or an L/C Issuer
pursuant to Article II if such Lender or such L/C Issuer, as applicable, has
notified the applicable Administrative Agent that it is incapable of receiving
notices under such Article by electronic communication. The applicable
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 applicable 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 either Administrative Agent or any of its Related Parties (collectively,
the "Agent Parties") have any liability to any Borrower, any Lender, an 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 any 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, an L/C
Issuer or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each Borrower, each Administrative Agent, each
L/C Issuer and each Swing Line Lender may change its address, telecopier or
telephone number for notices and other
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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 applicable
Administrative Agent, the applicable L/C Issuer and the applicable Swing Line
Lender. In addition, each Lender agrees to notify the applicable Administrative
Agent from time to time to ensure that such 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 Agents, L/C Issuers and Lenders. Each
Administrative Agent, the L/C Issuers 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 each Administrative Agent, each 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 an Administrative Agent may be recorded by
such 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 either 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 Agents and their
Affiliates (including the reasonable fees, charges and disbursements of counsel
for the Administrative Agents), 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 an 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 an Administrative Agent, any Lender or an L/C
Issuer (including the fees, charges and disbursements of any counsel for an
Administrative Agent, any Lender or an L/C Issuer), and shall pay all fees and
time charges for attorneys who may be employees of an Administrative Agent, any
Lender or an L/C Issuer, in connection with the enforcement or protection of its
rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans
made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) Indemnification by the Company. The Company shall indemnify each
Administrative Agent (and any sub-agent thereof), each Lender and each L/C
Issuer, and each Related Party of any of the
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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 each
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 an 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 either Administrative Agent (or any sub-agent
thereof), an L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the applicable Administrative Agent (or any
such sub-agent), the applicable 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 applicable Administrative Agent (or any such sub-agent) or
the applicable L/C Issuer in its capacity as such, or against any Related Party
of any of the foregoing acting for the applicable Administrative Agent (or any
such sub-agent) or applicable L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.13(e).
(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.
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(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 any Administrative Agent and any 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
an Administrative Agent, an L/C Issuer or any Lender, or an Administrative
Agent, an 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 such Administrative Agent,
such 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 each L/C Issuer severally
agrees to pay to the applicable Administrative Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by such
Administrative Agent, plus interest thereon from the date of such demand to the
date such payment is made at a rate per annum equal to the applicable Overnight
Rate from time to time in effect, in the applicable currency of such recovery or
payment. The obligations of the Lenders and the L/C Issuers under clause (b) of
the preceding sentence shall survive the payment in full of the Obligations and
the termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement and
the other Loan Documents shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns permitted
hereby, except that no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder or thereunder without the prior written consent
of the applicable Administrative Agent and each Lender and no Lender may assign
or otherwise transfer any of its rights or obligations hereunder except (i) to
an 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 Agents, the L/C Issuers 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 assignees all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (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 any such assignment shall be subject to the following
conditions:
(i) Minimum Amounts.
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(A) In the case of an assignment of the entire remaining amount
of the assigning Lender's Commitment and the related Loans at the time
owing to it or in the case of an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund, no minimum amount need be assigned;
and
(B) in any case not described in subsection (b)(i)(A) of this
Section, 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 applicable 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, in the case of an
assignment of U.S. Committed Loans, and CDN$5,000,000, in the case of
an assignment of Canadian Committed Loans, unless each of the U.S.
Administrative Agent or the Canadian Administrative Agent, as
applicable, 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 assignee (or
to an 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) Proportional Amounts. 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 Commitment
assigned, except that this clause (ii) shall not (A) apply to a Swing Line
Lender's rights and obligations in respect of Swing Line Loans or (B)
prohibit any Lender from assigning all or a portion of its rights and
obligations in respect of its U.S. Commitment (and the related U.S.
Committed Loans) and its Canadian Commitment (and the related Canadian
Committed Loans) on a non-pro rata basis;
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this
Section and, in addition:
(A) the consent of the Company (such consent not to be
unreasonably withheld or delayed) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of such
assignment or (2) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund;
(B) (i) the consent of the U.S. Administrative Agent (such
consent not to be unreasonably withheld or delayed) shall be required
for assignments in respect of any U.S. Commitment if such assignment
is to a Person that is not a U.S. Lender with a U.S. Commitment, an
Affiliate of such Lender or an Approved Fund with respect to such
Lender; and (ii) the consent of the Canadian Administrative Agent
(such consent not to be unreasonably withheld or delayed) shall be
required for assignments in respect of any Canadian Commitment if such
assignment is to a Person that is not a Canadian Lender with a
Canadian Commitment, an Affiliate of such Lender or an Approved Fund
with respect to such Lender; and
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(C) the consent of the applicable L/C Issuer (such consent not to
be unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit issued (or
to be issued) by such L/C Issuer; and
(D) the consent of the applicable Swing Line Lender (such consent
not to be unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to
participate in exposure under one or more Swing Line Loans made (or to
be made) by such Swing Line Lender.
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the applicable Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the
amount of $3,500; provided, however, that such Administrative Agent may, in
its sole discretion, elect to waive such processing and recordation fee in
the case of any assignment. The assignee, if it shall not be a Lender,
shall deliver to the applicable Administrative Agent an Administrative
Questionnaire.
(v) No Assignment to Company. No such assignment shall be made to the
Company or any of the Company's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.
Subject to acceptance and recording thereof by the applicable Administrative
Agent pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the 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, the applicable 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 applicable Administrative Agent, acting solely for this
purpose as an agent of the applicable Borrower, shall maintain 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 such Lender pursuant to
the terms hereof from time to time (each a "Register"). The entries in the
Register shall be conclusive, and the Borrowers, the Administrative Agents and
the Lenders may treat each Person whose name is recorded in such Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. Each Register shall be
available for inspection by each of the Borrowers and any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, any Borrower or any Administrative Agent, sell participations to any
Person (other than a natural person or
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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 Agents, the Lenders and the L/C
Issuers shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in 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 after Assignment. Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its U.S.
Commitment and/or Canadian 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 U.S. L/C Issuer and/or Canadian L/C Issuer, as applicable,
and/or (ii) upon 30 days' notice to the Company, resign as U.S. Swing Line
Lender and/or Canadian Swing Line Lender, as applicable. 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 an L/C
Issuer, it shall retain all the rights, powers, privileges and duties of
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such L/C Issuer hereunder with respect to all Letters of Credit issued by it and
outstanding as of the effective date of its resignation as such 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
a Swing Line Lender, it shall retain all the rights of such 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 applicable 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 Agents, the Lenders and the L/C Issuers 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 an Administrative
Agent, any Lender, an 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 an Administrative Agent, any Lender or an 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 Agents, the Lenders and the L/C Issuers
acknowledges that (a) the Information may include material non-public
information concerning the Company or a 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.
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10.08 RIGHT OF SETOFF.
If an Event of Default shall have occurred and be continuing, each Lender,
each 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 Agents, 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, such 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 such
L/C Issuer, irrespective of whether or not such Lender or such 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 such L/C Issuer different from the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, each 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, such L/C Issuer or their respective
Affiliates may have. Each Lender and each L/C Issuer agrees to notify the
Company and the Administrative Agents 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 an Administrative Agent or any Lender shall receive interest
in an amount that exceeds the Maximum Rate, the excess interest shall be applied
to the principal of the Loans or, if it exceeds such unpaid principal, refunded
to the applicable Borrower. In determining whether the interest contracted for,
charged, or received by an 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 Agents and when
the U.S. 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.
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
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execution and delivery hereof and thereof. Such representations and warranties
have been or will be relied upon by each Administrative Agent and each Lender,
regardless of any investigation made by an Administrative Agent or any Lender or
on their behalf and notwithstanding that an 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 (a) any Lender requests compensation under Section 3.04, (b) 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,
(c) a Lender (a "Non-Consenting Lender") does not consent to a proposed change,
waiver, discharge or termination with respect to any Loan Document that has been
approved by the Required Lenders as provided in Section 10.01 but requires
unanimous consent of all Lenders or all Lenders directly affected thereby (as
applicable) or (d) 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:
(i) the applicable Administrative Agent shall have received the
assignment fee specified in Section 10.06(b);
(ii) 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 applicable Borrower (in the case of all other
amounts);
(iii) 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;
(iv) such assignment does not conflict with applicable Laws; and
(v) in the case of any such assignment resulting from a Non-Consenting
Lender's failure to consent to a proposed change, waiver, discharge or
termination with respect to any Loan Document, the applicable replacement
bank, financial institution or Fund consents to the proposed change,
waiver, discharge or termination; provided that the failure by such Non-
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Consenting Lender to execute and deliver an Assignment and Assumption shall
not impair the validity of the removal of such Non-Consenting Lender and
the mandatory assignment of such Non-Consenting Lender's Commitments and
outstanding Loans and participations in L/C Obligations and Swing Line
Loans pursuant to this Section 10.13 shall nevertheless be effective
without the execution by such Non-Consenting Lender of an Assignment and
Assumption.
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 ANY ADMINISTRATIVE AGENT,
ANY LENDER OR ANY 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.
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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 each
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 such Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.
10.17 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 applicable 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 applicable Administrative Agent or
the applicable 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 applicable
Administrative Agent of any sum adjudged to be so due in the Judgment Currency,
the applicable 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 applicable Administrative Agent from any Borrower in the Agreement
Currency, such Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such 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 applicable
Administrative Agent in such currency, such 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).
10.18 STATUTORY NOTICE.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY THE
LENDERS CONCERNING LOANS AND OTHER CREDIT EXTENSIONS
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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.
10.19 NO ADVISORY OR FIDUCIARY RESPONSIBILITY.
In connection with all aspects of each transaction contemplated hereby,
each Borrower acknowledges and agrees, on behalf of itself and the other Loan
Parties, that: (a) the credit facilities provided for hereunder and any related
arranging or other services in connection therewith (including in connection
with any amendment, waiver or other modification hereof or of any other Loan
Document) are an arm's-length commercial transaction between the Borrowers and
their respective Affiliates, on the one hand, and each Administrative Agent and
the Arranger, on the other hand, and each of the Loan Parties is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan
Documents (including any amendment, waiver or other modification hereof or
thereof); (b) in connection with the process leading to such transaction, each
Administrative Agent and the Arranger each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for the
Borrowers or any of their respective Affiliates, stockholders, creditors or
employees or any other Person; (c) neither of the Administrative Agents nor the
Arranger has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of any Loan Party with respect to any of the
transactions contemplated hereby or the process leading thereto, including with
respect to any amendment, waiver or other modification hereof or of any other
Loan Document (irrespective of whether an Administrative Agent or the Arranger
has advised or is currently advising any of the Borrowers or any of their
respective Affiliates on other matters) and neither Administrative Agent nor the
Arranger has any obligation to any Borrower or any of its respective Affiliates
with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; (d) the
Administrative Agents and the Arranger and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Borrowers and their respective Affiliates, and neither of the
Administrative Agents nor the Arranger has any obligation to disclose any of
such interests by virtue of any advisory, agency or fiduciary relationship; and
(e) the Administrative Agents and the Arranger have not provided and will not
provide any legal, accounting, regulatory or tax advice with respect to any of
the transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Loan Document) and each Loan Party has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate. Each Loan Party hereby waives and releases, to the
fullest extent permitted by law, any claims that it may have against each
Administrative Agent and the Arranger with respect to any breach or alleged
breach of agency or fiduciary duty.
10.20 AMENDMENT AND RESTATEMENT OF EXISTING CREDIT AGREEMENT.
The parties to the Existing Credit Agreement each hereby agrees that, at
such time as this Agreement shall have become effective pursuant to the terms of
Article IV, (a) the Existing Credit Agreement automatically shall be deemed
amended, superseded and restated in its entirety by this Agreement and (b) the
Commitments under the Existing Credit Agreement and as defined therein
automatically shall be replaced with the Commitments hereunder. This Agreement
is not a novation of the Existing Credit Agreement.
105
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.,
an Oregon corporation
By: /s/ Mark J. Rittenbaum
------------------------------------
Name: Mark J. Rittenbaum
Title: Senior Vice President and
Treasurer
TRENTONWORKS LIMITED, a Nova Scotia
corporation
By /s/ Eldon MacDonald
-------------------------------------
Name: Eldon MacDonald
Title: Controller
By /s/ Robert J. Hickey
-------------------------------------
Name: Robert J. Hickey
Title: Vice President
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
BANK OF AMERICA, N.A., as U.S.
Administrative Agent
By /s/ Tiffany Shin
-------------------------------------
Name: Tiffany Shin
Title: Assistant Vice President
BANK OF AMERICA, N.A., acting through
its Canada Branch, as Canadian
Administrative Agent
By /s/ Medina Sales De Andrade
-------------------------------------
Name: Medina Sales De Andrade
Title: Assistant Vice President
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
BANK OF AMERICA, N.A., as a U.S. Lender
and as U.S. L/C Issuer and U.S.
Swing Line Lender
By /s/ Eric Eidler
-------------------------------------
Name: Eric Eidler
Title: Senior Vice President
BANK OF AMERICA, N.A., acting through
its Canada Branch, as a Canadian Lender
and as Canadian L/C Issuer and Canadian
Swing Line Lender
By /s/ Medina Sales De Andrade
-------------------------------------
Name: Medina Sales De Andrade
Title: Assistant Vice President
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By /s/ Stephen Sloan
-------------------------------------
Name: Stephen Sloan
Title: Vice President
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By /s/ Scott J. Bell
-------------------------------------
Name: Scott J. Bell
Title: Senior Vice President
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
BRANCH BANKING & TRUST COMPANY,
as a Lender
By /s/ Robert M. Searson
-------------------------------------
Name: Robert M Searson
Title: Senior Vice President
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By /s/ Chris Swindell
-------------------------------------
Name: Chris Swindell
Title: Senior Vice President
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
CAYLON NEW YORK BRANCH, as a Lender
By: /s/ Brian Bolotin
------------------------------------
Name: Brian Bolotin
Title: Managing Director
By: /s/ Angel Naranjo
------------------------------------
Name: Angel Naranjo
Title: Director
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
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
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
COMERICA BANK as a Lender
By: /s/ Don R. Carruth
------------------------------------
Name: Don R. Carruth
Title: Assistant Vice President
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
LASALLE BANK NATIONAL ASSOCIATON,
as a Lender
By: /s/ Stefan Loeb
------------------------------------
Name: Stefan Loeb
Title: Vice President
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT
SOVEREIGN BANK, as a Lender
By: /s/ Phillip J. Lynch
------------------------------------
Name: Phillip J. Lynch
Title: Assistant Vice President
THE GREENBRIER COMPANIES, INC.
CREDIT AGREEMENT