AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED SENIOR SECURED SYNDICATED FACILITY AGREEMENT
Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 3
TO
SECOND AMENDED AND RESTATED
SENIOR SECURED SYNDICATED FACILITY AGREEMENT
This AMENDMENT NO. 3, dated as of June 5, 2018 (this “Amendment”), to the SECOND AMENDED AND RESTATED SENIOR SECURED SYNDICATED FACILITY AGREEMENT is entered into among GENESEE & WYOMING INC., a Delaware corporation (“GWI”) and RP ACQUISITION COMPANY TWO, a Delaware corporation (“RP” and, together with GWI, collectively, the “Domestic Borrowers”), QUEBEC GATINEAU RAILWAY INC., a corporation constituted under the laws of Quebec, Canada (the “Canadian Borrower”), GWI UK ACQUISITION COMPANY LIMITED, a company incorporated under the laws of England and Wales (the “UK Borrower”), GWI HOLDING B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands with its statutory seat in Amsterdam, the Netherlands (“Euro Holdings”) and ROTTERDAM RAIL FEEDING B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid)) incorporated under the laws of the Netherlands with its statutory seat in Dordrecht, the Netherlands (“Rotterdam Rail Feeding” and together with Euro Holdings, the “European Borrowers” and, together with the Domestic Borrowers, the Canadian Borrower and the UK Borrower, the “Borrowers”), the Guarantors, the Lenders, BANK OF AMERICA, N.A., acting as Administrative Agent, Canadian Agent, European Agent and UK Agent (collectively in such capacities and including any successors in such capacities, the “Agents”), the Additional Term Lenders (as defined below) party hereto with respect to the Additional Term Loan Commitments (as defined below) and the Additional Revolving Lenders (as defined below) party hereto with respect to the Additional Revolving Loan Commitments (as defined below), and amends and restates the Second Amended and Restated Senior Secured Syndicated Facility Agreement, dated as of March 20, 2015 (as amended to the date hereof and as the same may be further amended, supplemented or otherwise modified from time to time, the “Credit Agreement”) by and among the Borrowers, the institutions from time to time party thereto as Lenders (the “Lenders”), the Agents and the Guarantors. Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
XXXXXXX, §00 of the Credit Agreement provides that the Loan Parties may amend the Credit Agreement or any other Loan Document with the consent of the Required Lenders or Lenders, as applicable;
WHEREAS, on the date hereof, the Borrowers, the Agents, each existing Required Lender under the Credit Agreement who has executed a Consent (as defined below), the Additional Term Lenders and the Additional Revolving Lenders desire to amend and restate the Credit Agreement to, among other things, (i) refinance the Domestic Term Loans thereunder with new term loans (including any Additional Domestic Term Loans, the “Tranche B Domestic Term Loans”; each such commitment (including any Additional Domestic Term Loan Commitments) to make such Tranche B Domestic Term Loans, a “Tranche B Domestic Term Loan Commitment” and each such lender of Tranche B Domestic Term Loans, a “Tranche B Domestic Term Lender”) in an aggregate principal amount listed on Schedule II (the “Commitment Schedule”) to the Third Amended and Restated Credit Agreement (as defined below), (ii) refinance the UK Term Loans thereunder with new term loans (including any Additional UK Term Loans, the “Tranche B UK Term Loans” and, collectively with the Tranche B Domestic Term Loans, the “Tranche B Term Loans”; each such commitment to make such Tranche B UK Term Loans (including any Additional UK Term Loan Commitments, a “Tranche B UK Term Loan Commitment” and, collectively with the Tranche B Domestic Term Loan Commitments, the “Tranche B Term Loan
Commitments”; each such lender of Tranche B UK Term Loans, a “Tranche B UK Term Lender” and, collectively with the Tranche B Domestic Term Lenders (including any Additional Term Lenders), the “Tranche B Term Lenders”) in an aggregate principal amount listed on the Commitment Schedule, (iii) refinance and reallocate the aggregate principal amount of Domestic Revolving Loans thereunder with new revolving credit loans (the “Tranche B Domestic Revolving Loans”; each such commitment to make such Tranche B Domestic Revolving Loans, a “Tranche B Domestic Revolving Loan Commitment” and each such lender of such Tranche B Domestic Revolving Loans, a “Tranche B Domestic Revolving Lender”) in an aggregate principal amount listed on the Commitment Schedule, (iv) refinance and reallocate the aggregate principal amount of Canadian Revolving Loans thereunder with new revolving credit loans (the “Tranche B Canadian Revolving Loans”; each such commitment to make such Tranche B Canadian Revolving Loans, a “Tranche B Canadian Revolving Loan Commitment” and each such lender of such Tranche B Canadian Revolving Loans, a “Tranche B Canadian Revolving Lender”) in an aggregate principal amount listed on the Commitment Schedule, (v) refinance and reallocate the European Revolving Loans thereunder with new revolving credit loans (the “Tranche B European Revolving Loans”; each such commitment to make such Tranche B European Revolving Loans, a “Tranche B European Revolving Loan Commitment” and each such lender of such Tranche B European Revolving Loans, a “Tranche B European Revolving Lender”) in an aggregate principal amount listed on the Commitment Schedule and (vi) refinance and reallocate the aggregate principal amount of UK Revolving Loans thereunder with new revolving credit loans (the “Tranche B UK Revolving Loans”, and collectively with the Tranche B Domestic Revolving Loans, Tranche B Canadian Revolving Loans and Tranche B European Revolving Loans (including any Additional Revolving Loans), the “Tranche B Revolving Loans; each such commitment to make such Tranche B UK Revolving Loans, a “Tranche B UK Revolving Loan Commitment” and, collectively with the Tranche B Domestic Revolving Loan Commitments, Tranche B Canadian Revolving Loan Commitments and Tranche B European Revolving Loan Commitments (including any Additional Revolving Loan Commitments), the “Tranche B Revolving Loan Commitments”; each such lender of such Tranche B UK Revolving Loans, a “Tranche B UK Revolving Lender” and, collectively with the Tranche B Domestic Revolving Lenders, the Tranche B Canadian Revolving Lenders and the Tranche B European Revolving Lenders (including any Additional Revolving Lenders), the “Tranche B Revolving Lenders”) in an aggregate principal amount of listed on the Commitment Schedule, in each case, on terms and conditions set forth herein and in the Third Amended and Restated Credit Agreement;
WHEREAS, upon the effectiveness of this Amendment, each Domestic Term Lender that shall have executed and delivered a signature page to this Amendment (a “Consent”) under the Cashless Settlement Option described below (each, a “Cashless Option Domestic Term Lender”) shall be deemed to have exchanged all (or such lesser amount as the Administrative Agent may allocate) of its Domestic Term Loans under the Credit Agreement (which existing Domestic Term Loans shall thereafter no longer be deemed to be outstanding) for Tranche B Domestic Term Loans (such Tranche B Domestic Term Loans to be classified as Term Loans under the Third Amended and Restated Credit Agreement) in the same aggregate principal amount as such Domestic Term Lender’s Domestic Term Loans under the Credit Agreement (or such lesser amount as the Administrative Agent may allocate) (the “Exchanged Domestic Term Loans”), and such Domestic Term Lender shall thereafter be a Term Lender under the Third Amended and Restated Credit Agreement;
WHEREAS, upon the effectiveness of this Amendment, each Domestic Term Lender that shall have executed and delivered a Consent under the Post-Closing Settlement Option described below shall acquire by novation the principal amount of Tranche B Domestic Term Loans under the Third Amended and Restated Credit Agreement committed to separately by such Domestic Term Lender (or such lesser amount as the Administrative Agent may allocate), each Domestic Lender that shall not have executed a Consent shall be repaid in full, and the Domestic Borrowers shall pay to each such Domestic Term Lender all accrued and unpaid interest on the Domestic Term Loans to, but not including, the date of effectiveness of the Amendment;
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WHEREAS, upon the effectiveness of this Amendment, the Domestic Borrowers will prepay the Domestic Term Loans outstanding immediately prior to the Restatement Effective Date of each Domestic Lender, other than the Cashless Option Domestic Term Lenders, and the Domestic Borrowers shall enter into new Tranche B Domestic Term Loan Commitments to (i) replace such prepaid Domestic Term Loans and (ii) increase the aggregate principal amount of Domestic Term Loans (such new Tranche B Domestic Term Loan Commitments, the “Additional Domestic Term Loan Commitments”);
WHEREAS, upon the effectiveness of this Amendment, each UK Lender that shall have executed and delivered a Consent under the Cashless Settlement Option described below (each, a “Cashless Option UK Term Lender” and with the Cashless Option Domestic Term Lenders, each a “Cashless Option Term Lender”) shall be deemed to have exchanged all (or such lesser amount as the Administrative Agent may allocate) of its UK Term Loans under the Credit Agreement (which existing UK Term Loans shall thereafter no longer be deemed to be outstanding) for Tranche B UK Term Loans (such Tranche B UK Term Loans to be classified as Term Loans under the Third Amended and Restated Credit Agreement) in the same aggregate principal amount as such UK Lender’s UK Term Loans under the Credit Agreement (or such lesser amount as the Administrative Agent may allocate) (the “Exchanged UK Term Loans”, and collectively with the Exchanged Domestic Term Loans, the “Exchanged Term Loans”), and such UK Lender shall thereafter be a Term Lender under the Third Amended and Restated Credit Agreement;
WHEREAS, upon the effectiveness of this Amendment, each UK Lender that shall have executed and delivered a Consent under the Post-Closing Settlement Option described below shall acquire by novation the principal amount of Tranche B UK Term Loans under the Third Amended and Restated Credit Agreement committed to separately by such UK Lender (or such lesser amount as the Administrative Agent may allocate), each UK Lender that shall not have executed a Consent shall be repaid in full, and the UK Borrower shall pay to each such UK Lender all accrued and unpaid interest on the UK Term Loans to, but not including, the date of effectiveness of the Amendment;
WHEREAS, upon the effectiveness of this Amendment, the UK Borrower will prepay the UK Term Loans outstanding immediately prior to the Restatement Effective Date of each UK Lender, other than the Cashless Option UK Term Lenders, and the UK Borrower shall enter into new Tranche B UK Term Loan Commitments to (i) replace such prepaid UK Term Loans and (ii) increase the aggregate principal amount of UK Term Loans (such new Tranche B UK Term Loan Commitments, the “Additional UK Term Loan Commitments” and, collectively with the Additional Domestic Term Loan Commitments, the “Additional Term Loan Commitments” and any Lender holding such Commitments, an “Additional Term Lender”);
WHEREAS, the Additional Term Lenders have agreed to (i) make Tranche B Domestic Term Loans to the Domestic Borrowers on the Restatement Effective Date in an amount equal to the Additional Domestic Term Loan Commitments (such Domestic Term Loans, the “Additional Domestic Term Loans”) and (ii) make Tranche B UK Term Loans to the UK Borrowers on the Restatement Effective Date in an amount equal to the Additional UK Term Loan Commitments (such Tranche B UK Term Loans, the “Additional UK Term Loans”, and, collectively with the Additional Domestic Term Loans, the “Additional Term Loans”);
WHEREAS, each Domestic Revolving Lender that executes and delivers a Consent (each, a “Cashless Option Domestic Revolving Lender”) agrees upon effectiveness of this Amendment to
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have its existing Domestic Revolving Loan Commitment and its outstanding Domestic Revolving Loans thereunder (if any) exchanged into a Tranche B Domestic Revolving Loan Commitment (each Tranche B Domestic Revolving Loan Commitment, an “Exchanged Domestic Revolving Commitment”) and Tranche B Domestic Revolving Loans, respectively (or such lesser amount(s) as the Administrative Agent may allocate) (such Domestic Revolving Loans, the “Exchanged Domestic Revolving Loans), effective as of the Restatement Effective Date;
WHEREAS, upon the effectiveness of this Amendment, the Domestic Borrowers will (x) terminate the Domestic Revolving Loan Commitments outstanding immediately prior to the Restatement Effective Date of each Domestic Lender other than a Cashless Option Domestic Revolving Lender, in which case, the Domestic Borrowers shall pay to each such Domestic Lender all accrued fees and interest related to such Domestic Lender’s Domestic Revolving Loan Commitments to, but not including, the Restatement Effective Date and (y) enter into new Tranche B Domestic Revolving Loan Commitments to replace such terminated Domestic Revolving Loan Commitments (such new Tranche B Domestic Revolving Loan Commitments, the “Additional Domestic Revolving Loan Commitments”);
WHEREAS, each Canadian Lender that executes and delivers a Consent (each, a “Cashless Option Canadian Revolving Lender”) agrees upon effectiveness of this Amendment to have its existing Canadian Revolving Loan Commitment and its outstanding Canadian Revolving Loans thereunder (if any) exchanged into a Tranche B Canadian Revolving Loan Commitment (each Canadian Revolving Loan Commitment, an “Exchanged Canadian Revolving Commitment”) and Tranche B Canadian Revolving Loans, respectively (or such lesser amount(s) as the Administrative Agent may allocate) (such Canadian Revolving Loans, the “Exchanged Canadian Revolving Loans), effective as of the Restatement Effective Date;
WHEREAS, upon the effectiveness of this Amendment, the Canadian Borrower will (x) terminate the Canadian Revolving Loan Commitments outstanding immediately prior to the Restatement Effective Date of each Canadian Lender other than a Cashless Option Canadian Revolving Lender, in which case, the Canadian Borrower shall pay to each such Canadian Lender all accrued fees and interest related to such Canadian Lender’s Canadian Revolving Loan Commitments to, but not including, the Restatement Effective Date and (y) enter into new Tranche B Canadian Revolving Loan Commitments to replace such terminated Canadian Revolving Loan Commitments (such new Tranche B Canadian Revolving Loan Commitments, the “Additional Canadian Revolving Loan Commitments”);
WHEREAS, each European Lender that executes and delivers a Consent (each, a “Cashless Option European Revolving Lender”) agrees upon effectiveness of this Amendment to have its existing European Commitment and its outstanding European Loans thereunder (if any) exchanged into a Tranche B European Revolving Loan Commitment (each European Revolving Loan Commitment, an “Exchanged European Revolving Commitment”) and Tranche B European Revolving Loans, respectively (or such lesser amount(s) as the Administrative Agent may allocate) (such European Loans, the “Exchanged European Revolving Loans), effective as of the Restatement Effective Date;
WHEREAS, upon the effectiveness of this Amendment, each European Borrower will (x) terminate the European Commitments outstanding immediately prior to the Restatement Effective Date of each European Lender other than a Cashless Option European Revolving Lender, in which case, such European Borrower shall pay to each such European Lender all accrued fees and interest related to such European Lender’s European Commitments to, but not including, the Restatement Effective Date and (y) enter into new Tranche B European Revolving Loan Commitments to replace such terminated European Commitments (such new Tranche B European Revolving Loan Commitments, the “Additional European Revolving Loan Commitments”);
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WHEREAS, each UK Revolving Lender that executes and delivers a Consent (each, a “Cashless Option UK Revolving Lender”, and together with Cashless Option Domestic Revolving Lender, the Cashless Option Canadian Revolving Lender and the Cashless Option European Revolving Lender, the “Cashless Option Revolving Lenders”) agrees upon effectiveness of this Amendment to have its existing UK Revolving Loan Commitment exchanged into a Tranche B UK Revolving Loan Commitment (each UK Revolving Loan Commitment, an “Exchanged UK Revolving Commitment” and collectively with the Exchanged Domestic Revolving Commitments, the Exchanged Canadian Revolving Commitments and the Exchanged European Revolving Commitments, the “Exchanged Revolving Commitments”) and Tranche B UK Revolving Loans, respectively (or such lesser amount(s) as the Administrative Agent may allocate) (such UK Revolving Loans, the “Exchanged UK Revolving Loans” and collectively with the Exchanged European Revolving Loans, the Exchanged Domestic Revolving Loans and the Exchanged Canadian Revolving Loans, the “Exchanged Revolving Loans), effective as of the Restatement Effective Date;
WHEREAS, upon the effectiveness of this Amendment, the UK Borrower will (x) terminate the UK Revolving Loan Commitments outstanding immediately prior to the Restatement Effective Date of each UK Lender other than a Cashless Option UK Revolving Lender, in which case the UK Borrower shall pay to each such UK Lender all accrued fees and interest related to such UK Lender’s UK Revolving Loan Commitments to, but not including, the Restatement Effective Date and (y) enter into new Tranche B UK Revolving Loan Commitments to replace such terminated UK Revolving Loan Commitments (such new Tranche B UK Revolving Loan Commitments, the “Additional UK Revolving Loan Commitments,” and, together with the Additional Domestic Revolving Loan Commitments, the Additional Canadian Revolving Loan Commitments and the Additional European Revolving Loan Commitments, the “Additional Revolving Loan Commitments,” and any Lender holding such Commitments, an “Additional Revolving Lender,” and, together with the Additional Term Lenders, the “Additional Lenders”);
WHEREAS, the Additional Revolving Lenders have agreed to (i) provide the Additional Domestic Revolving Loan Commitments to the Domestic Borrowers on the Restatement Effective Date, (ii) provide the Additional UK Revolving Loan Commitments to the UK Borrower on the Restatement Effective Date, (iii) provide the Additional European Revolving Loan Commitments to the European Borrowers on the Restatement Effective Date and (iv) provide the Additional Canadian Revolving Loan Commitments to the Canadian Borrower on the Restatement Effective Date;
WHEREAS, the Borrower has requested, and the Lenders are willing to agree that after the Restatement Effective Date (i) all Rail Equipment (as defined in the U.S. Security Agreement) shall constitute Excluded Property (as defined in and for purposes of the U.S. Security Agreement) and (ii) no Surface Transportation Board Filings (as defined in the U.S. Security Agreement) shall be required in connection with the acquisition or disposition of any Rail Equipment. For the avoidance of doubt, the Loan Parties shall not be required pursuant to Section 9.14 of the Credit Agreement or pursuant to Section 4.6 of the U.S. Security Agreement to notify the Administrative Agent of the acquisition of Rail Equipment;
WHEREAS, the Borrower has requested, and the Lenders are willing to agree that, after the Restatement Effective Date, no Loan Party shall be required to take any action under the laws of any jurisdiction other than a Specified Collateral Jurisdiction (as defined in the Third Amended and Restated Credit Agreement) to create or perfect a security interest in any Collateral;
WHEREAS, the Borrower has requested, and the Lenders are willing to consent to the Release (as defined below);
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WHEREAS, the Agents, the Borrowers, the Additional Term Lenders, the Additional Revolving Lenders and the other Lenders signatory hereto are willing to so agree pursuant to §27 of the Credit Agreement, subject to the conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and receipt of all of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment and Restatement.
(a) Effective as of the Restatement Effective Date, and subject to the terms and conditions set forth herein, the Credit Agreement is hereby amended and restated in the form of Annex A hereto (as so amended and restated, the “Third Amended and Restated Credit Agreement”).
(b) Effective on and as of the Restatement Effective Date, and subject to the terms and conditions set forth herein, (i) each Foreign Subsidiary listed on Schedule 16.11(a) to the Third Amended and Restated Credit Agreement (which for the avoidance of doubt, are all of the Foreign Guarantors (other than Borrowers and Genesee & Wyoming C.V.) organized in jurisdictions that are not Required Guarantor Jurisdictions (as defined in the Third Amended and Restated Credit Agreement)) (collectively, the “Released Foreign Guarantors”) shall be automatically released and discharged from their obligations under the Loan Documents (including the Guaranty), (ii) the Released Foreign Guarantors shall cease to be Loan Parties, (iii) the Liens on the Collateral granted to the Administrative Agent under the Collateral Documents by the Released Foreign Guarantors shall be automatically released and discharged, other than with respect to the Liens granted by the Released Foreign Guarantors pursuant to the Collateral Documents governed by applicable foreign law, which Liens will be released and discharged pursuant to the documentation set forth on Schedule 16.11(b) (the “Released Foreign Guarantor Collateral”), (iv) the Administrative Agent shall be, and hereby is, authorized to (x) deliver the release documents described on Schedule 16.11(b) to the Third Amended and Restated Credit Agreement to the Loan Parties and take such actions as are contemplated thereby and (y) execute and deliver such additional releases, terminations and other documents (including amendments to the Collateral Documents) and take such actions and make such filings (in each applicable jurisdiction) as the Loan Parties may reasonably request to give effect to the foregoing (collectively, the “Release”).
SECTION 2. Term Lenders. Each Cashless Option Term Lender and each Additional Term Lender hereby agrees, after the effectiveness of this Amendment and on the terms and conditions set forth herein, to make or exchange, as applicable, its Domestic Term Loan and/or UK Term Loan under the Credit Agreement in accordance with §3.1 of the Third Amended and Restated Credit Agreement. Subject to and upon the terms and conditions set forth herein, each applicable Additional Term Lender agrees to make, after the effectiveness of this Amendment, (i) a Term Loan to the Domestic Borrowers (which shall replace the Domestic Term Loans existing prior to such date and be considered Tranche B Domestic Term Loans for all purposes hereunder), in an amount indicated on the Commitment Schedule minus the aggregate amount of Exchanged Domestic Term Loans (or such lesser amount as the Administrative Agent may allocate) and (ii) a Term Loan to the UK Borrower (which shall replace the UK Term Loans existing prior to such date and be considered Tranche B UK Term Loans for all purposes hereunder), in an amount indicated on the Commitment Schedule minus the aggregate amount of Exchanged UK Term Loans (or such lesser amount as the Administrative Agent may allocate). Each such party shall, effective on the Restatement Effective Date, automatically become a party to the Third Amended and Restated Credit Agreement as a Term Lender. Each Tranche B Term Lender and each Additional Term Lender hereby consents to such Lender’s applicable Commitment Percentage as set forth on Schedule II of the Third Amended and Restated Credit Agreement (the “Commitment Schedule”).
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SECTION 3. Revolving Lenders.
(a) Each Cashless Option Revolving Lender below hereby agrees, after the effectiveness of this Amendment and on the terms and conditions set forth herein, to exchange (i) its existing Domestic Revolving Loan Commitment into a Tranche B Domestic Revolving Loan Commitment in the amount allocated to such Domestic Lender under the Commitment Schedule (and, in the case of any Domestic Revolving Loan that is outstanding on the Restatement Effective Date, such Domestic Revolving Loan shall be cashlessly repaid with the proceeds of a Tranche B Domestic Revolving Loan in equal amount made under the Tranche B Domestic Revolving Loan Commitment), (ii) its existing Canadian Revolving Loan Commitment into a Tranche B Canadian Revolving Loan Commitment in the amount allocated to such Canadian Lender under the Commitment Schedule (and, in the case of any Canadian Revolving Loan that is outstanding on the Restatement Effective Date, such Canadian Revolving Loan shall be cashlessly repaid with the proceeds of a Tranche B Canadian Revolving Loan in equal amount made under the Tranche B Canadian Revolving Loan Commitment), (iii) its existing European Commitment into a Tranche B European Revolving Loan Commitment in the amount allocated to such European Lender under the Commitment Schedule (and, in the case of any European Revolving Loan that is outstanding on the Restatement Effective Date, such European Revolving Loan shall be cashlessly repaid with the proceeds of a Tranche B European Revolving Loan in equal amount made under the Tranche B European Revolving Loan Commitment) and (iv) its existing UK Revolving Loan Commitment into a Tranche B UK Revolving Loan Commitment in the amount allocated to such UK Lender under the Commitment Schedule (and, in the case of any UK Revolving Loan that is outstanding on the Restatement Effective Date, such UK Revolving Loan shall be cashlessly repaid with the proceeds of a Tranche B UK Revolving Loan in equal amount made under the Tranche B UK Revolving Loan Commitment);
(b) Subject to and upon the terms and conditions set forth herein, each applicable Additional Revolving Lender agrees to extend, after effectiveness of this Amendment, (i) new Domestic Revolving Loan Commitments to the Domestic Borrowers (which shall replace certain Domestic Revolving Loan Commitments existing prior to such date and be considered Tranche B Domestic Revolving Loan Commitments for all purposes hereunder), in an amount indicated on the Commitment Schedule minus the aggregate amount of Exchanged Domestic Revolving Loans (or such lesser amount as the Administrative Agent may allocate), (ii) new UK Revolving Loan Commitments to the UK Borrower (which shall replace certain UK Revolving Loan Commitments existing prior to such date and be considered Tranche B UK Revolving Loan Commitments for all purposes hereunder), in an amount indicated on the Commitment Schedule minus the aggregate amount of Exchanged UK Revolving Loans (or such lesser amount as the Administrative Agent may allocate), (iii) new European Revolving Loan Commitments to the European Borrowers (which shall replace certain European Revolving Loan Commitments existing prior to such date and be considered Tranche B European Revolving Loan Commitments for all purposes hereunder), in an amount indicated on the Commitment Schedule minus the aggregate amount of Exchanged European Revolving Loans (or such lesser amount as the Administrative Agent may allocate) and (iv) new Canadian Revolving Loan Commitments to the Canadian Borrower (which shall replace certain Canadian Revolving Loan Commitments existing prior to such date and be considered Tranche B Canadian Revolving Loan Commitments for all purposes hereunder), in an amount indicated on the Commitment Schedule minus the aggregate amount of Exchanged Canadian Revolving Loans (or such lesser amount as the Administrative Agent may allocate);
(c) Each Tranche B Revolving Lender shall, effective on the Restatement Effective Date, automatically become party to the Third Amended and Restated Credit Agreement as a Revolving Lender; and
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(d) Each Tranche B Revolving Lender and each Additional Revolving Lender hereby consents to such Tranche B Revolving Lender’s applicable Commitment Percentage as set forth on the Commitment Schedule.
SECTION 4. Conditions of Effectiveness. This Amendment and the amendment and restatement of the Credit Agreement as set forth in §1 hereof shall become effective as of the date first written above when, and only when, each of the following conditions precedent shall have been satisfied by the Borrowers or waived by the Agents (the “Restatement Effective Date”):
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by (i) the Loan Parties, (ii) the Required Lenders, (iii) each Cashless Option Term Lender, (iv) each Cashless Option Revolving Lender and (v) each Additional Lender;
(b) The Administrative Agent shall have received, on behalf of itself, the other Agents, the Issuing Lenders and the Lenders, a usual and customary opinion of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Domestic Borrowers and the U.S. Guarantors and (ii) local counsels to the other Loan Parties (and additionally, with respect to the UK Borrower and UK Guarantors and the European Borrowers and European Guarantors, local counsels to the Administrative Agent) pertaining to the jurisdictions indicated on Schedule 4(b) attached hereto (other than the opinions set forth in section (iii) of such Schedule 4(b)), in each case in form and substance satisfactory to the Administrative Agent;
(c) The Administrative Agent shall have received payment of all fees and expenses due to the Administrative Agent (as agreed to in writing between the Administrative Agent and the Borrowers) (including, without limitation, fees and reasonable and documented out-of-pocket expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent, invoiced to the Borrowers at least one Business Day prior to the Restatement Effective Date), in each case required to be paid on the Restatement Effective Date. Substantially simultaneously with the effectiveness of this Amendment (i) the Term Lenders under the Credit Agreement (including all Cashless Option Term Lenders) shall have been paid all accrued principal (other than the principal amount of Exchanged Term Loans) and interest (other than interest on term loans that are exchanged into Exchanged Term Loans) on their Term Loans to, but not including, the Restatement Effective Date and (ii) the Revolving Lenders under the Credit Agreement shall have been paid all accrued principal (other than the principal amount of Exchanged Revolving Loans), fees (other than fees on revolving loan commitments that are exchanged into Exchanged Revolving Commitments) and interest (other than interest on revolving loans that are exchanged into Exchanged Revolving Loans) related to their Revolving Loan Commitments to, but not including, the Restatement Effective Date;
(d) The Administrative Agent shall have received for the account of each Cashless Option Term Lender, Cashless Option Revolving Lender, Additional Term Lender and Additional Revolving Lender such fees as otherwise agreed between the Borrower and the Administrative Agent;
(e) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing, either on the date hereof or on the Restatement Effective Date;
(f) The representations and warranties of the Borrowers and their Subsidiaries contained in §8 of the Third Amended and Restated Credit Agreement shall be true and correct in all material respects at and as of the Restatement Effective Date; provided, however, that references therein to the “Credit Agreement” shall be deemed to refer to the Third Amended and Restated Credit Agreement attached hereto as Annex A;
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(g) GWI shall have provided a certificate signed by an authorized officer of GWI certifying as to the satisfaction of the conditions set forth in paragraphs (e) and (f) of this Section 4;
(h) The Administrative Agent shall have received, on behalf of each Loan Party hereto, an officer’s certificate, dated the Restatement Effective Date, substantially in the form delivered at the Closing Date or such other form as may be acceptable to the Administrative Agent, including as attachments, (i) a copy, certified by a duly authorized officer of such Person to be true and complete and in full force and effect on the Restatement Effective Date, of each of the Governing Documents (and, with respect to the UK Loan Parties, each of the documents listed in 4(i) below) as in effect on such date of certification (or in lieu of a copy of such Governing Documents, certification by such Person that such Governing Documents have not been amended since previously delivered to the Administrative Agent), (ii) other than in respect of the European Borrowers and the UK Loan Parties, certificates of good standing, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel and (iii) evidence of corporate or other action necessary for the valid execution, delivery and performance by each of the Borrowers and each of the Guarantors of this Amendment, which shall have been duly and effectively taken;
(i) With respect to each of the UK Loan Parties, the following documents shall have been delivered:
(i) a certificate signed by an authorized director (or equivalent) of each of the UK Loan Parties confirming that borrowing or guaranteeing or securing, as appropriate, the Tranche B UK Term Loan Commitments and the Tranche B UK Revolving Loan Commitments would not cause any borrowing, guarantee, security or similar limit binding on such UK Loan Party to be exceeded;
(ii) a specimen signature of each person authorized by the resolution referred to in clause (i) of Section 4(h) above;
(iii) a copy of a resolution of the board of directors of each corporate shareholder of each of the UK Loan Parties approving the terms of any shareholders resolution delivered pursuant to clause (i) of Section 4(h) above;
(iv) a copy of a letter signed by each of the UK Loan Parties appointing GWI as their respective agent for service of process in relation to any proceedings before the courts of the State of New York in connection with this Amendment and the Third Amended and Restated Credit Agreement and evidence that such process agent has accepted its appointment;
(v) an executed copy of the supplemental share charge between Euro Holdings, GWI UK Holding Limited, GWI UK Acquisition Company Limited, RailInvest Holding Company Limited, RailInvest Acquisitions Limited, Freightliner Group Limited, Freightliner Acquisitions Limited, Management Consortium Bid Limited, Freightliner Limited and Pentalver Transport Limited (as chargors) and the Administrative Agent in relation to the shares charged pursuant to (i) the share charge dated 9 July 2015 between the Chargors (as defined therein) and the Administrative Agent, (ii) the share charge dated 23 June 2017 between Pentalver Transport Limited and the Administrative Agent (the “UK Confirmation Pledge”); and
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(vi) with respect to Euro Holdings only, corporate authorizations from the board of directors, shareholders and supervisory board, in each case, to the extent applicable and required for entering into the UK Confirmation Pledge; and
(j) The Administrative Agent shall have received from each Borrower so requested by the Administrative Agent, a certification regarding beneficial ownership as required by 31 C.F.R. § 1010.230.
(k) The Administrative Agent shall have received from GWI a completed form reasonably acceptable to the Administrative Agent representing that no Mortgaged Property includes any “Buildings” or “Manufactured (Mobile) Homes” (in each case, as defined in the Credit Agreement), and that there is no present intent to construct or place any Buildings or Manufactured (Mobile) Homes on the property that would constitute Mortgaged Property under the Credit Agreement.
(l) The Administrative Agent shall have received a Loan Request, Swingline Loan Request or Letter of Credit Application, as applicable, in a form reasonably acceptable to the Administrative Agent.
SECTION 5. Fees and Expenses.
Each of the Borrowers agrees to pay in accordance with the terms of §17 of the Third Amended and Restated Credit Agreement all reasonable out-of-pocket costs and expenses of the Agents in connection with the preparation, reproduction, execution and delivery of this Amendment (including, without limitation, the reasonable and documented fees and out-of-pocket expenses of counsel for the Agents with respect thereto). Each Lender agrees to waive any amount to which it may be entitled under §6.9 of the Third Amended and Restated Credit Agreement in connection with the transactions contemplated by this Amendment.
SECTION 6. Post-Closing Covenant. Each of the Borrowers covenants and agrees that, (x) within 180 days of
the Restatement Effective Date, the Borrowers shall have satisfied the requirements of §9.16(b) of the Third Amended and Restated Credit Agreement in connection with this Amendment, (y) within 30 days of the Restatement
Effective Date, each Loan Party organized in the State of Alabama shall deliver to the Administrative Agent a Certificate of Compliance from the Alabama Department of Revenue and (z) the Borrowers shall, or shall cause each European Borrower or
other applicable Loan Party to, and each such European Borrower and other applicable Loan Party covenants and agrees to, provide the following documents to the Administrative Agent within 30 days (unless extended by the Administrative Agent in
its sole discretion) of the Restatement Effective Date:
(a) corporate authorizations from the board of directors, shareholders and supervisory board, in each case, to the extent applicable and required for entering into the applicable Dutch Security Agreements;
(b) an executed copy of the third ranking deed of pledge of shares in the capital of Euro Holdings between GWI International LLC as general partner of Genesee & Wyoming C.V. (the “Partnership”) as pledgor, the Administrative Agent as pledgee and Euro Holdings as company;
(c) an executed copy of the third ranking deed of pledge of shares in the capital of the Rotterdam Rail Feeding between Euro Holdings as pledgor, the Administrative Agent as pledgee and the Rotterdam Rail Feeding as company;
10
(d) an executed copy of the third ranking deed of pledge of receivables among the European Borrowers and the Partnership as pledgors and the Administrative Agent as pledgee;
(e) an executed copy of the third ranking deed of pledge of bank among between the European Borrowers and the Partnership as pledgors and the Administrative Agent as pledgee;
(f) an executed copy of the third ranking deed of pledge of movables among the European Borrowers and the Partnership as pledgors and the Administrative Agent as pledgee; and
(g) the opinion(s) set forth in section (iii) of Schedule 4(b), in each case in form and substance satisfactory to the Administrative Agent.
SECTION 7. [Reserved].
SECTION 8. Reference to and Effect on the Credit Agreement and the Loan Documents.
(a) On and after the Restatement Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by this Amendment (i.e., the Third Amended and Restated Credit Agreement). Each of the table of contents and lists of Exhibits, as applicable, shall be amended mutatis mutandis (other than (i) Exhibits X-0, X-0 and B-3, which are being removed, (ii) Exhibits X-0, X-0, X-0, X-0, C-1 and F, which are amended and restated hereby and set forth in Annex A and (iii) Exhibit Q, which is set forth in Annex A de novo) to reflect the changes made in this Amendment as of the Restatement Effective Date. The schedules to the Credit Agreement shall be amended and restated as set forth in Annex A. Schedule 16.11(a) and (b) hereto shall constitute Schedule 16.11(a) and (b) of the Third Amended and Restated Credit Agreement.
(b) Except as expressly amended hereby or specifically waived above, all of the terms and provisions of the Credit Agreement and all other Loan Documents, are and shall remain in full force and effect and are hereby ratified and confirmed. Without limiting the generality of the foregoing, other than the Collateral Documents and all of the Collateral described therein which are released and discharged pursuant to the terms of this Amendment or (as applicable) pursuant to the documentation set forth on Schedule 16.11(b), the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case, as amended by this Amendment and each Loan Party confirms and reaffirms its prior grant of security interests and liens under the Collateral Documents, which shall continue in full force and effect and secure the Obligations, after giving effect to this Amendment.
(c) This Amendment shall not constitute a novation of the Credit Agreement or any other Loan Documents.
(d) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders, the Borrowers, the Co-Lead Arrangers or the Agents under any of the Loan Documents, nor constitute a waiver or amendment of any other provision of any of the Loan Documents or for any purpose except as expressly set forth herein. On and after the effectiveness of this Amendment, this Amendment shall for all purposes constitute a Loan Document.
11
(e) The Tranche B Term Lenders and Tranche B Revolving Lenders shall each be a “Lender” for purposes of the Loan Documents.
(f) On and after the Restatement Effective Date, the Tranche B Term Loan Commitments and Additional Term Loan Commitments shall constitute “Term Loan Commitments” and the Tranche B Term Loans (including Additional Term Loans) made under §6.20 of the Third Amended and Restated Credit Agreement shall constitute “Term Loans” for purposes of the Loan Documents (and the Tranche B Term Loans (including Additional Term Loans) shall also constitute “Term Loans” for purposes of the Loan Documents). The Tranche B Revolving Loan Commitments and Additional Revolving Loan Commitments shall constitute “Revolving Loan Commitments” and any (x) Tranche B Revolving Loans drawn under any Tranche B Revolving Loan Commitment and (y) loans drawn under any Additional Revolving Loan Commitment (“Additional Revolving Loans”) shall in each case, constitute “Revolving Loans” for purposes of the Loan Documents (and the Tranche B Revolving Loan Commitments and Additional Revolving Loan Commitments shall also constitute “Revolving Loan Commitments” for purposes of the Loan Documents).
SECTION 9. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart by facsimile or other electronic transmission shall be effective as delivery of an original executed counterpart of this Amendment.
SECTION 10. Governing Law.
THIS AMENDMENT IS A CONTRACT UNDER THE LAW OF THE STATE OF NEW YORK AND SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW §5-1401, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 11. Section Titles. The section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement among the parties hereto, except when used to reference a section. Any reference to the number of a clause, subclause or subsection of any Loan Document immediately followed by a reference in parenthesis to the title of the section of such Loan Document containing such clause, subclause or subsection is a reference to such clause, sub-clause or subsection and not to the entire section; provided, however, that, in case of direct conflict between the reference to the title and the reference to the number of such section, the reference to the title shall govern absent manifest error. If any reference to the number of a section (but not to any clause, sub-clause or subsection thereof) of any Loan Document is followed immediately by a reference in parenthesis to the title of a section of any Loan Document, the title reference shall govern in case of direct conflict absent manifest error.
SECTION 12. Notices. All communications and notices hereunder shall be given as provided in the Third Amended and Restated Credit Agreement.
SECTION 13. Severability. The fact that any term or provision of this Amendment is held invalid, illegal or unenforceable as to any person in any situation in any jurisdiction shall not affect the validity, enforceability or legality of the remaining terms or provisions hereof or the validity, enforceability or legality of such offending term or provision in any other situation or jurisdiction or as applied to any person.
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SECTION 14. Successors. The terms of this Amendment shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
SECTION 15. Jurisdiction; Waiver of Jury Trial. The jurisdiction and waiver of right to trial by jury provisions in §§22 and 26 of the Third Amended and Restated Credit Agreement are incorporated herein by reference mutatis mutandis.
SECTION 16. Effect of the Exchange of Revolving Loan Commitments.
(a) Upon the exchange of the Domestic Revolving Loan Commitments as contemplated hereby, (i) each Tranche B Domestic Revolving Lender shall make Tranche B Domestic Revolving Loans to the Domestic Borrowers and the Domestic Borrowers shall prepay outstanding Domestic Revolving Loans with the proceeds thereof in an amount such that, after giving effect to such prepayment, the percentage of the Tranche B Domestic Revolving Loans held by each Tranche B Domestic Revolving Lender will equal the percentage of the aggregate Tranche B Domestic Revolving Loan Commitments of all Tranche B Domestic Revolving Lenders represented by such Tranche B Domestic Revolving Lender’s Tranche B Domestic Revolving Loan Commitment after giving effect to the exchange of the Domestic Revolving Loan Commitments as contemplated hereby and (ii) each Domestic Lender immediately prior to such exchange will automatically and without further act be deemed to have assigned to each Tranche B Domestic Revolving Lender, and the Tranche B Domestic Revolving Lenders will automatically and without further act be deemed to have assumed, a pro rata portion of such Domestic Lenders’ participations under the Credit Agreement in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations under the Third Amended and Restated Credit Agreement in Letters of Credit and (B) participations under the Third Amended and Restated Credit Agreement in Swingline Loans held by each Tranche B Domestic Revolving Lender will equal the percentage of the aggregate Tranche B Domestic Revolving Loan Commitments held by such Tranche B Domestic Revolving Lender after giving effect to the exchange of the Domestic Revolving Loan Commitments as contemplated hereby. The Domestic Borrowers shall pay accrued interest on the Domestic Revolving Loans being prepaid and any other amounts payable to any Lender in accordance with §§6.4 through 6.7 of the Credit Agreement.
(b) Upon the exchange of the Canadian Revolving Loan Commitments as contemplated hereby, (i) each Tranche B Canadian Revolving Lender shall make Tranche B Canadian Revolving Loans to the Canadian Borrower and the Canadian Borrower shall prepay outstanding Canadian Revolving Loans with the proceeds thereof in an amount such that, after giving effect to such prepayment, the percentage of the Tranche B Canadian Revolving Loans held by each Tranche B Canadian Revolving Lender will equal the percentage of the aggregate Tranche B Canadian Revolving Loan Commitments of all Tranche B Canadian Lenders represented by such Tranche B Canadian Lender’s Tranche B Canadian Revolving Loan Commitment after giving effect to the exchange of the Canadian Revolving Loan Commitments as contemplated hereby and (ii) each Canadian Lender immediately prior to such exchange will automatically and without further act be deemed to have assigned to each Tranche B Canadian Revolving Lender, and the Tranche B Canadian Revolving Lenders will automatically and without further act be deemed to have assumed, a pro rata portion of such Canadian Lenders’ participations under the Credit Agreement in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations under
13
the Third Amended and Restated Credit Agreement in Letters of Credit and (B) participations under the Third Amended and Restated Credit Agreement in Swingline Loans held by each Tranche B Canadian Revolving Lender will equal the percentage of the aggregate Tranche B Canadian Revolving Loan Commitments held by such Tranche B Canadian Lender after giving effect to the exchange of the Canadian Revolving Loan Commitments as contemplated hereby. The Canadian Borrower shall pay accrued interest on the Canadian Revolving Loans being prepaid and any other amounts payable to any Lender in accordance with §§6.4 through 6.7 of the Credit Agreement; and
(c) Each UK Loan Party confirms for the benefit of the Secured Parties that with effect from the Restatement Effective Date:
(i) all the Foreign Guaranteed Obligations shall (x) remain in full force and effect notwithstanding the designation of any new document as a Loan Document or any additions, amendments, novation, substitution or supplements of or to the Loan Documents and the imposition of any amended, new or more onerous obligations under the Loan Documents in relation to any UK Loan Party or otherwise and (y) extend to all new obligations assumed by any UK Loan Party under each amended Loan Document as a result of this Amendment (including, but not limited to, under the Third Amended and Restated Credit Agreement, and in respect of the Exchange Term Loans, the Additional Term Loan Commitments, the Exchange Revolving Commitments and the Additional Revolving Loan Commitments); and
(ii) the security interests granted by it pursuant to each UK Pledge Agreement to which it is a party shall (x) remain in full force and effect (including, to the extent applicable, the perfection and priority thereof) notwithstanding the designation of any new document as a Loan Document or any additions, amendments, novation, substitution or supplements of or to the Loan Documents and the imposition of any amended, new or more onerous obligations under the Loan Documents and (y) secure the Foreign Obligations, as amended as a result of this Amendment (including, but not limited to, under the Third Amended and Restated Credit Agreement, and in respect of the Exchange Term Loans, the Additional Term Loan Commitments, the Exchange Revolving Commitments and the Additional Revolving Loan Commitments),
in each case subject to the limitations set out in the Third Amended and Restated Credit Agreement and the relevant Instrument of Adherence (Guaranty) or UK Pledge Agreement.
(d) Upon the exchange of the European Revolving Loan Commitments as contemplated hereby, (i) each Tranche B European Revolving Lender shall make Tranche B European Revolving Loans to the European Borrowers and the European Borrowers shall prepay outstanding European Revolving Loans with the proceeds thereof in an amount such that, after giving effect to such prepayment, the percentage of the Tranche B European Revolving Loans held by each Tranche B European Revolving Lender will equal the percentage of the aggregate Tranche B European Revolving Loan Commitments of all Tranche B European Revolving Lenders represented by such Tranche B European Revolving Lender’s Tranche B European Revolving Loan Commitment after giving effect to the exchange of the European Revolving Loan Commitments as contemplated hereby and (ii) each European Lender immediately prior to such exchange will automatically and without further act be deemed to have assigned to each Tranche B European Revolving Lender, and the Tranche B European Revolving Lenders will automatically and without further act be deemed to have assumed, a pro rata portion of such European Lenders’ participations under the Credit Agreement in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations under the Third Amended and Restated Credit Agreement in Letters of Credit and (B) participations under the Third Amended and Restated Credit Agreement in Swingline
14
Loans held by each Tranche B European Revolving Lender will equal the percentage of the aggregate Tranche B European Revolving Loan Commitments held by such Tranche B European Revolving Lender after giving effect to the exchange of the European Revolving Loan Commitments as contemplated hereby. The European Borrowers shall pay accrued interest on the European Revolving Loans being prepaid and any other amounts payable to any Lender in accordance with §§6.4 through 6.7 of the Credit Agreement.
(e) Upon the exchange of the UK Revolving Loan Commitments as contemplated hereby, (i) each Tranche B UK Revolving Lender shall make Tranche B UK Revolving Loans to the UK Borrower and the UK Borrower shall prepay outstanding UK Revolving Loans with the proceeds thereof in an amount such that, after giving effect to such prepayment, the percentage of the Tranche B UK Revolving Loans held by each Tranche B UK Revolving Lender will equal the percentage of the aggregate Tranche B UK Revolving Loan Commitments of all Tranche B UK Revolving Lenders represented by such Tranche B UK Revolving Lender’s Tranche B UK Revolving Loan Commitment after giving effect to the exchange of the UK Revolving Loan Commitments as contemplated hereby and (ii) each UK Lender immediately prior to such exchange will automatically and without further act be deemed to have assigned to each Tranche B UK Revolving Lender, and the Tranche B UK Revolving Lenders will automatically and without further act be deemed to have assumed, a pro rata portion of such UK Lenders’ participations under the Credit Agreement in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations under the Third Amended and Restated Credit Agreement in Letters of Credit and (B) participations under the Third Amended and Restated Credit Agreement in Swingline Loans held by each Tranche B UK Revolving Lender will equal the percentage of the aggregate Tranche B UK Revolving Loan Commitments held by such Tranche B UK Revolving Lender after giving effect to the exchange of the UK Revolving Loan Commitments as contemplated hereby. The UK Borrower shall pay accrued interest on the UK Revolving Loans being prepaid and any other amounts payable to any Lender in accordance with §§6.4 through 6.7 of the Credit Agreement.
SECTION 17. Tax Matters.
(a) For purposes of Foreign Account Tax Compliance Act (FATCA), the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Third Amended and Restated Credit Agreement and the Loans (including the Tranche B Term Loans and any Tranche B Revolving Loans) as not qualifying as “grandfathered obligations” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
(b) For U.S. federal income tax purposes, (i) the Tranche B Domestic Term Loans (including the Exchanged Domestic Term Loans) shall be treated as fungible, and (ii) the Tranche B UK Term Loans (including the Exchanged UK Term Loans) shall be treated as fungible.
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers and general partners thereunto duly authorized, as of the date first written above.
BORROWERS: | GENESEE & WYOMING INC. | |||||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||||||
Name: Xxxxxx X. Xxxxxx | ||||||||||
Title: Senior Vice President, Corporate Development and Treasurer | ||||||||||
RP ACQUISITION COMPANY TWO | ||||||||||
By: | /s/ Xxxxxxx Xxxxxxx | |||||||||
Name: Xxxxxxx Xxxxxxx | ||||||||||
Title: Vice President and Treasurer | ||||||||||
QUEBEC GATINEAU RAILWAY INC. | ||||||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||||||
Name: Xxxxxx X. Xxxxxx | ||||||||||
Title: Vice President | ||||||||||
GWI UK ACQUISITION COMPANY LIMITED | ||||||||||
By: | /s/ Xxxxxxx X. Xxxxx | |||||||||
Name: Xxxxxxx X. Xxxxx | ||||||||||
Title: Director | ||||||||||
GWI HOLDING B.V. | ||||||||||
By: | /s/ Xxxxxxx X. Xxxxx | |||||||||
Name: Xxxxxxx X. Xxxxx | ||||||||||
Title: Managing Director A | ||||||||||
By: | /s/ Xxxxxx Xxxxxx | |||||||||
Name: Xxxxxx Xxxxxx | ||||||||||
Title: Managing Director B |
[Signature Page to GWI Amendment No. 3]
ROTTERDAM RAIL FEEDING B.V. | ||
By: | /s/ Xxxxxxx X. Xxxxx | |
Name: Xxxxxxx X. Xxxxx | ||
Title: Director |
[Signature Page to GWI Amendment No. 3]
U.S. GUARANTORS: | ALABAMA & GULF COAST RAILWAY LLC | |||||
AN RAILWAY, L.L.C. | ||||||
ARIZONA & CALIFORNIA RAILROAD COMPANY | ||||||
ARIZONA EASTERN RAILWAY COMPANY | ||||||
ARKANSAS LOUISIANA & MISSISSIPPI RAILROAD COMPANY | ||||||
ARKANSAS MIDLAND RAILROAD COMPANY, INC. | ||||||
ATLANTIC AND WESTERN RAILWAY, LIMITED PARTNERSHIP | ||||||
ATLANTIC WESTERN TRANSPORTATION, INC. | ||||||
ATLAS RAILROAD CONSTRUCTION, LLC | ||||||
BAUXITE & NORTHERN RAILWAY COMPANY | ||||||
BUFFALO & PITTSBURGH RAILROAD, INC. | ||||||
CAGY INDUSTRIES, INC. | ||||||
CALIFORNIA NORTHERN RAILROAD COMPANY | ||||||
CASCADE AND COLUMBIA RIVER RAILROAD COMPANY | ||||||
CENTRAL OREGON & PACIFIC RAILROAD, INC. | ||||||
CENTRAL RAILROAD COMPANY OF INDIANAPOLIS | ||||||
CHATTAHOOCHEE BAY RAILROAD, INC. | ||||||
CHATTAHOOCHEE INDUSTRIAL RAILROAD | ||||||
CHATTOOGA & CHICKAMAUGA RAILWAY CO. | ||||||
CLINTON PROPERTIES, INC. | ||||||
COLUMBUS & CHATTAHOOCHEE RAILROAD, INC. | ||||||
COLUMBUS AND GREENVILLE RAILWAY COMPANY | ||||||
COMMONWEALTH RAILWAY, INCORPORATED | ||||||
CONECUH VALLEY RAILWAY, L.L.C. | ||||||
CONNECTICUT SOUTHERN RAILROAD, INC. | ||||||
CORPUS CHRISTI TERMINAL RAILROAD, INC. | ||||||
DALLAS, GARLAND & NORTHEASTERN RAILROAD, INC. | ||||||
DELPHOS TERMINAL COMPANY, INC. | ||||||
EAST TENNESSEE RAILWAY, L.P. | ||||||
EASTERN ALABAMA RAILWAY, LLC EMONS INDUSTRIES, INC. | ||||||
EMONS RAILROAD GROUP, INC. | ||||||
EMONS TRANSPORTATION GROUP, INC. | ||||||
FIRST COAST RAILROAD INC. | ||||||
XXXXXXX AND PRINCETON R.R. CO. | ||||||
GALVESTON RAILROAD, L.P. | ||||||
GENESEE & WYOMING RAILROAD SERVICES, INC. | ||||||
By: | /s/ Xxxxxxx Xxxxxxx | |||||
Name: Xxxxxxx Xxxxxxx | ||||||
Title: Vice President and Treasurer |
[Signature Page to GWI Amendment No. 3]
U.S. GUARANTORS: | ||||||
(CONTINUED) | ||||||
GENESEE AND WYOMING RAILROAD COMPANY | ||||||
GEORGIA CENTRAL RAILWAY, L.P. | ||||||
GEORGIA SOUTHWESTERN RAILROAD, INC. | ||||||
GOLDEN ISLES TERMINAL RAILROAD, INC. | ||||||
GRANITE STATE TRANSLOADING INC. | ||||||
XXXXXXXX TRANSFER COMPANY, INC. | ||||||
GWI CANADA, INC. | ||||||
GWI INTERNATIONAL LLC | ||||||
GWI LEASING CORPORATION | ||||||
GWI RAIL MANAGEMENT CORPORATION | ||||||
HEART OF GEORGIA RAILROAD, INC. | ||||||
HILTON & ALBANY RAILROAD, INC. | ||||||
HURON AND EASTERN RAILWAY COMPANY, INC. | ||||||
ILLINOIS & MIDLAND RAILROAD, INC. | ||||||
INDIANA & OHIO RAIL CORP. | ||||||
INDIANA & OHIO RAILWAY COMPANY | ||||||
INDIANA SOUTHERN RAILROAD, LLC | ||||||
KIAMICHI RAILROAD COMPANY L.L.C. | ||||||
KWT RAILWAY, INC. | ||||||
XXXX RAILROAD COMPANY | ||||||
XXXX RAILWAYS, LLC | ||||||
LITTLE ROCK & WESTERN RAILWAY, L.P. | ||||||
LOUISIANA & DELTA RAILROAD, INC. | ||||||
LUXAPALILA VALLEY RAILROAD, INC. | ||||||
MAINE INTERMODAL TRANSPORTATION, INC. | ||||||
MARQUETTE RAIL, LLC | ||||||
MARYLAND MIDLAND RAILWAY, INC. | ||||||
MERIDIAN & XXXXXX RAILROAD, L.L.C. | ||||||
MID-MICHIGAN RAILROAD, INC. | ||||||
MISSOURI & NORTHERN ARKANSAS RAILROAD COMPANY, INC. | ||||||
NEW ENGLAND CENTRAL RAILROAD, INC. | ||||||
NEW STATESRAIL HOLDINGS, LLC | ||||||
NORTH CAROLINA & VIRGINIA RAILROAD COMPANY, LLC | ||||||
OHIO AND PENNSYLVANIA RAILROAD COMPANY | ||||||
OHIO CENTRAL RAILROAD, INC. | ||||||
OHIO SOUTHERN RAILROAD, INC. | ||||||
OLYMPIA & XXXXXXX RAILROAD, INC. | ||||||
OTTER TAIL VALLEY RAILROAD COMPANY, INC. | ||||||
PALM BEACH RAIL HOLDING, INC. | ||||||
PAWNEE TRANSLOADING COMPANY, INC. | ||||||
By: | /s/ Xxxxxxx Xxxxxxx | |||||
Name: Xxxxxxx Xxxxxxx | ||||||
Title: Vice President and Treasurer |
[Signature Page to GWI Amendment No. 3]
U.S. GUARANTORS: | ||||||
(CONTINUED) | ||||||
PHOENIX LOGISTICS LTD. | ||||||
PLAINVIEW TERMINAL COMPANY | ||||||
POINT COMFORT & NORTHERN RAILWAY COMPANY | ||||||
PORTLAND & WESTERN RAILROAD, INC. | ||||||
PROVIDENCE AND WORCESTER RAILROAD COMPANY | ||||||
PUGET SOUND & PACIFIC RAILROAD | ||||||
RAIL LINE HOLDINGS #1, INC. | ||||||
RAIL LINK, INC. | ||||||
RAIL PARTNERS, L.P. | ||||||
RAIL SWITCHING SERVICES, LLC | ||||||
RAIL TRANSPORTATION SOLUTIONS INC. | ||||||
RAILAMERICA AUSTRALIA II, LLC | ||||||
RAILAMERICA CONTRACT SWITCHING SERVICES, INC. | ||||||
RAILAMERICA EQUIPMENT CORP. | ||||||
RAILAMERICA HOLDING SERVICES, INC. | ||||||
RAILAMERICA OPERATIONS SHARED SERVICES, INC. | ||||||
RAILAMERICA OPERATIONS SUPPORT GROUP, INC. | ||||||
RAILAMERICA TRANSPORTATION CORP. | ||||||
RAILAMERICA, INC. | ||||||
RAILINK ACQUISITION, INC. | ||||||
RAILROAD DISTRIBUTION SERVICES, INC. | ||||||
RAILTEX DISTRIBUTION SERVICES, INC. | ||||||
RAILTEX, INC. | ||||||
RAPID CITY, PIERRE & EASTERN RAILROAD, INC. | ||||||
RICEBORO SOUTHERN RAILWAY, LLC | ||||||
ROCHESTER & SOUTHERN RAILROAD, INC. | ||||||
ROCHESTER SWITCHING SERVICES INC. | ||||||
ROCKDALE, SANDOW & SOUTHERN RAILROAD COMPANY | ||||||
RP ACQUISITION COMPANY ONE | ||||||
SALT LAKE CITY SOUTHERN RAILROAD COMPANY, INC. | ||||||
SAN DIEGO & IMPERIAL VALLEY RAILROAD COMPANY, INC. | ||||||
SAN XXXXXXX VALLEY RAILROAD CO. | ||||||
SAN XXXXX TRAILS, INC. | ||||||
SAVANNAH PORT TERMINAL RAILROAD, INC. | ||||||
SOUTH BUFFALO RAILWAY COMPANY | ||||||
SOUTH CAROLINA CENTRAL RAILROAD COMPANY, LLC | ||||||
SOUTH EAST RAIL, INC. | ||||||
ST. XXXXXXXX & ATLANTIC RAILROAD COMPANY | ||||||
STATESRAIL II RAILROAD, LLC | ||||||
STATESRAIL, LLC | ||||||
SUMMIT VIEW, INC. | ||||||
SWKR OPERATING CO., INC. | ||||||
By: | /s/ Xxxxxxx Xxxxxxx | |||||
Name: Xxxxxxx Xxxxxxx | ||||||
Title: Vice President and Treasurer |
[Signature Page to GWI Amendment No. 3]
U.S. GUARANTORS: | ||||||
(CONTINUED) | ||||||
TALLEYRAND TERMINAL RAILROAD COMPANY, INC. | ||||||
TAZEWELL & PEORIA RAILROAD, INC. | ||||||
THE ALIQUIPPA & OHIO RIVER RAILROAD CO. | ||||||
THE BAY LINE RAILROAD, L.L.C. | ||||||
THE CENTRAL RAILROAD COMPANY OF INDIANA | ||||||
THE COLUMBUS & OHIO RIVER RAIL ROAD COMPANY | ||||||
THE MAHONING VALLEY RAILWAY COMPANY | ||||||
THE MASSENA TERMINAL RAILROAD COMPANY | ||||||
THE PITTSBURGH & OHIO CENTRAL RAILROAD COMPANY | ||||||
THE PRESCOTT AND NORTHWESTERN RAILROAD COMPANY | ||||||
THE XXXXXX & XXXXXXXX RAILROAD COMPANY | ||||||
THE YOUNGSTOWN BELT RAILROAD COMPANY | ||||||
THREE NOTCH RAILWAY, L.L.C. | ||||||
TOLEDO, PEORIA & WESTERN RAILWAY CORP. | ||||||
TOMAHAWK RAILWAY, LIMITED PARTNERSHIP | ||||||
TRANSRAIL HOLDINGS, LLC | ||||||
TRANSRAIL NORTH AMERICA, LLC | ||||||
UTAH RAILWAY COMPANY | ||||||
VALDOSTA RAILWAY, X.X. | ||||||
XXXXXXX COUNTY RAILROAD COMPANY | ||||||
XXXXXX & SALINE RIVER RAILROAD COMPANY | ||||||
WELLSBORO & CORNING RAILROAD, LLC | ||||||
WESTERN KENTUCKY RAILWAY, L.L.C. | ||||||
WILLAMETTE & PACIFIC RAILROAD, INC. | ||||||
WILMINGTON TERMINAL RAILROAD, LIMITED PARTNERSHIP | ||||||
WIREGRASS CENTRAL RAILWAY, L.L.C. | ||||||
YORK RAIL LOGISTICS, INC. | ||||||
YORK RAILWAY COMPANY | ||||||
YOUNGSTOWN & AUSTINTOWN RAILROAD, INC. | ||||||
By: | /s/ Xxxxxxx Xxxxxxx | |||||
Name: Xxxxxxx Xxxxxxx | ||||||
Title Vice President and Treasurer |
[Signature Page to GWI Amendment No. 3]
CANADIAN GUARANTORS: | ||||||
GENESEE & WYOMING CANADA INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
HURON CENTRAL RAILWAY INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
KÉRAIL INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
ST. XXXXXXXX & ATLANTIC RAILROAD (QUEBEC) INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
MIRABEL RAILWAY INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
SERVICES FERROVIAIRES DE L’ESTUAIRE INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
WESTERN LABRADOR RAIL SERVICES INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President |
[Signature Page to GWI Xxxxxxxxx Xx. 0]
XXXXXXX XXXXXXXX RAILWAY (2013) INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
CAPE BRETON & CENTRAL NOVA SCOTIA RAILWAY LIMITED | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
GODERICH-EXETER RAILWAY COMPANY LIMITED | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
KNOB LAKE & TIMMINS RAILWAY COMPANY INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
RAILINK CANADA LTD. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
RAILTEX CANADA, INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
TROIS-RIVIÈRES TRAILERS INC./REMORQUES TROIS-RIVIÈRES INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President |
[Signature Page to GWI Amendment No. 3]
RAILCARE INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President |
[Signature Page to GWI Amendment No. 3]
UK GUARANTORS: | ||||||
GWI UK HOLDING LIMITED | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Director | ||||||
FREIGHTLINER ACQUISITIONS LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
FREIGHTLINER GROUP LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
FREIGHTLINER HEAVY HAUL LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
FREIGHTLINER LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
FREIGHTLINER MAINTENANCE LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director |
[Signature Page to GWI Amendment No. 3]
FREIGHTLINER MIDDLE EAST LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
FREIGHTLINER RAILPORTS LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
MANAGEMENT CONSORTIUM BID LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
RAILINVEST ACQUISITIONS LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
RAILINVEST HOLDING COMPANY LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
UK BULK HANDLING SERVICES LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director |
[Signature Page to GWI Amendment No. 3]
PENTALVER TRANSPORT LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
PENTALVER CANNOCK LIMITED | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director |
[Signature Page to GWI Amendment No. 3]
EUROPEAN GUARANTOR: | ||||||
GENESEE & WYOMING C.V. | ||||||
By: | /s/ Xxxxxxx X’Xxxxxxx | |||||
Name: Xxxxxxx X’Xxxxxxx | ||||||
Title: Managing Director |
[Signature Page to GWI Amendment No. 3]
AGENTS: | BANK OF AMERICA, N.A., as Administrative Agent, European Agent and UK Agent | |||||
By: | /s/ Ronaldo Naval | |||||
Name: Ronaldo Naval | ||||||
Title: Vice President | ||||||
BANK OF AMERICA, N.A., acting through its Canada branch, as Canadian Agent | ||||||
By: | /s/ Xxxxxx Sales Xx Xxxxxxx | |||||
Name: Xxxxxx Sales Xx Xxxxxxx | ||||||
Title: Vice President |
[Signature Page to GWI Amendment No. 3]
ADDITIONAL LENDER: | ||||||
BANK OF AMERICA, N.A., as Additional Revolving Lender with respect to the Additional Domestic Revolving Loan Commitments and as an Additional Term Lender with respect to the Additional Domestic Term Loan Commitments | ||||||
By: | /s/ Xxxxx Xxxxxxxx Xxxxxxxxxxx | |||||
Name: Xxxxx Xxxxxxxx Xxxxxxxxxxx | ||||||
Title: Director | ||||||
BANK OF AMERICA, N.A., acting through its Canada branch, as Additional Revolving Lender with respect to the Additional Canadian Revolving Loan Commitments | ||||||
By: | /s/ Xxxxxx Sales Xx Xxxxxxx | |||||
Name: Xxxxxx Sales Xx Xxxxxxx | ||||||
Title: Vice President | ||||||
BANK OF AMERICA, N.A., as Additional Revolving Lender with respect to the Additional European Revolving Loan Commitments and Tranche B UK Revolving Loan Commitments and as an Additional Term Lender with respect to the Tranche B UK Term Loan Commitments | ||||||
By: | /s/ Xxxxx Xxxxxxxx Xxxxxxxxxxx | |||||
Name: Xxxxx Xxxxxxxx Xxxxxxxxxxx | ||||||
Title: Director |
[Signature Page to GWI Amendment No. 3]
Additional Lenders (check one or both):
☐ | As an Additional Revolving Lender |
☐ | As an Additional Term Lender |
, |
as a Lender (type name of the legal entity) |
By: | ||
Name: | ||
Title: | ||
[If a second signature is necessary: | ||
By: | ||
Name: | ||
Title:] |
[Signature Page to GWI Amendment No. 3]
CONSENT TO AMENDMENT NO. 3
CONSENT (this “Consent”) to Amendment No. 3 (“Amendment”) to the SECOND AMENDED AND RESTATED SENIOR SECURED SYNDICATED FACILITY AGREEMENT, dated as of March 20, 2015, (as amended, amended and restated, or otherwise modified prior to the date hereof, the “Credit Agreement” and as further amended and restated pursuant to the Amendment, the “Third Amended and Restated Credit Agreement”), among GENESEE & WYOMING INC., a Delaware corporation (“GWI”) and RP ACQUISITION COMPANY TWO, a Delaware corporation (“RP” and, together with GWI, collectively, the “Domestic Borrowers”), QUEBEC GATINEAU RAILWAY INC., a corporation constituted under the laws of Quebec, Canada (the “Canadian Borrower”), GWI UK ACQUISITION COMPANY LIMITED, a company incorporated under the laws of England and Wales (the “UK Borrower”), GWI HOLDING B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands with its statutory seat in Amsterdam, the Netherlands (“Euro Holdings”) and ROTTERDAM RAIL FEEDING B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands with its statutory seat in Dordrecht, the Netherlands (the “Rotterdam Rail Feeding” and together with Euro Holdings, the “European Borrowers” and, together with the Domestic Borrowers, the Canadian Borrower and the UK Borrower, the “Borrowers”), the Guarantors, the Lenders party thereto, BANK OF AMERICA, N.A., acting as Administrative Agent, Canadian Agent, European Agent and UK Agent (collectively in such capacities and including any successors in such capacities, the “Agents”).
Capitalized terms used in this Consent but not defined in this Consent have the meanings assigned to such terms in the Amendment.
A. | Existing Term Lenders |
Existing Lenders of Domestic Term Loans
The undersigned Domestic Term Lender hereby irrevocably and unconditionally approves the Amendment and consents as follows (check ONE option):
Cashless Settlement Option
☐ | to convert 100% of the outstanding principal amount of the Domestic Term Loans under the Credit Agreement held by such Domestic Term Lender (or such lesser amount allocated to such Domestic Term Lender by the Administrative Agent) into Tranche B Domestic Term Loans under the Third Amended and Restated Credit Agreement in the principal amount set forth on the Commitment Schedule. In the event a lesser amount is allocated, the difference between the current amount and the allocated amount will be prepaid on the Restatement Effective Date. |
Post-Closing Settlement Option
☐ | to have 100% of the outstanding principal amount of the Domestic Term Loans under the Credit Agreement held by such Domestic Term Lender prepaid on the Restatement Effective Date and acquire by novation the principal amount of Term Loans under the Third Amended and Restated Credit Agreement committed to separately by the undersigned (or such lesser amount allocated to such Domestic Term Lender by the Administrative Agent). |
Existing Lenders of UK Term Loans
The undersigned UK Lender hereby irrevocably and unconditionally approves the Amendment and consents as follows (check ONE option):
[Consent to GWI Amendment No. 3]
Cashless Settlement Option
☐ | to convert 100% of the outstanding principal amount of the UK Term Loans under the Credit Agreement held by such UK Lender (or such lesser amount allocated to such UK Lender by the Administrative Agent) into Tranche B UK Term Loans under the Third Amended and Restated Credit Agreement in the principal amount set forth on the Commitment Schedule. In the event a lesser amount is allocated, the difference between the current amount and the allocated amount will be prepaid on the Restatement Effective Date. |
Post-Closing Settlement Option
☐ | to have 100% of the outstanding principal amount of the UK Term Loans under the Credit Agreement held by such UK Lender prepaid on the Restatement Effective Date and acquire by novation the principal amount of Term Loans under the Third Amended and Restated Credit Agreement committed to separately by the undersigned (or such lesser amount allocated to such UK Lender by the Administrative Agent). |
[Consent to GWI Amendment No. 3]
B. | Existing Revolving Lenders |
Existing Domestic Lenders
☐ | The undersigned Domestic Lender hereby irrevocably and unconditionally approves the Amendment and consents and agrees to exchange 100% of its Domestic Revolving Loan Commitments (or such lesser amount allocated to such Domestic Lender by the Administrative Agent) into Tranche B Domestic Revolving Loan Commitments. |
Existing Canadian Lenders
☐ | The undersigned Canadian Lender hereby irrevocably and unconditionally approves the Amendment and consents and agrees to exchange 100% of its Canadian Revolving Loan Commitments (or such lesser amount allocated to such Canadian Lender by the Administrative Agent) into Tranche B Canadian Revolving Loan Commitments. |
Existing European Lenders
☐ | The undersigned European Lender hereby irrevocably and unconditionally approves the Amendment and consents and agrees to exchange 100% of its European Commitments (or such lesser amount allocated to such European Lender by the Administrative Agent) into Tranche B European Revolving Loan Commitments. |
Existing UK Lenders
☐ | The undersigned UK Lender hereby irrevocably and unconditionally approves the Amendment and consents and agrees to exchange 100% of its UK Revolving Loan Commitments (or such lesser amount allocated to such UK Lender by the Administrative Agent) into Tranche B UK Revolving Loan Commitments. |
[Consent to GWI Amendment No. 3]
IN WITNESS WHEREOF, the undersigned has caused this Consent to be executed and delivered by a duly authorized officer as of the date first written above.
, |
as a Lender (type name of the legal entity) | ||||
By: | ||||
Name: | ||||
Title: | ||||
[If a second signature is necessary: | ||||
By: | ||||
Name: | ||||
Title:] |
ANNEX A
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
[SEE ATTACHED]
ANNEX A
THIRD AMENDED AND RESTATED SENIOR SECURED
SYNDICATED FACILITY AGREEMENT
Dated as of June 5, 2018,
among
GENESEE & WYOMING INC. and RP ACQUISITION COMPANY TWO, as Domestic Borrowers
QUEBEC GATINEAU RAILWAY INC., as Canadian Borrower
GWI HOLDING B.V. and ROTTERDAM RAIL FEEDING B.V., as European Borrowers
GWI UK ACQUISITION COMPANY LIMITED, as UK Borrower
THE DESIGNATED SUBSIDIARIES REFERRED TO HEREIN,
THE GUARANTORS,
THE LENDING INSTITUTIONS PARTY HERETO,
as Lenders
BANK OF AMERICA, N.A.,
as Administrative Agent, Domestic Swingline Lender, Issuing Lender,
European Agent and UK Agent,
BANK OF AMERICA XXXXXXX XXXXX INTERNATIONAL LIMITED,
as European Swingline Lender and UK Swingline Lender and
BANK OF AMERICA, N.A., acting through its Canada branch,
as Canadian Swingline Lender and Canadian Agent
with
BANK OF AMERICA, N.A.,
CITIGROUP GLOBAL MARKETS INC,
JPMORGAN CHASE BANK, N.A. and
MUFG BANK, LTD,
as Co-Lead Arrangers and Co-Bookrunning Managers
JPMORGAN CHASE BANK, N.A.,
CITIGROUP GLOBAL MARKETS INC. and
MUFG BANK, LTD., as Co-Syndication Agents
BRANCH BANKING AND TRUST COMPANY,
BMO XXXXXX BANK, N.A.,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
SUMITOMO MITSUI BANKING CORPORATION,
TD BANK, N.A. and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents
CAPITAL ONE, N.A.,
CITIZENS BANK, NATIONAL ASSOCIATION,
FIFTH THIRD BANK,
HSBC BANK USA, NATIONAL ASSOCIATION,
PNC BANK, N.A.,
SANTANDER BANK, N.A.,
SUNTRUST BANK and
U.S. BANK NATIONAL ASSOCIATION, as Senior Managing Agents
TABLE OF CONTENTS
Page | ||||||||
1. |
DEFINITIONS AND RULES OF INTERPRETATION. |
2 | ||||||
1.1 |
Definitions |
2 | ||||||
1.2 |
Rules of Interpretation |
53 | ||||||
1.3 |
Accounting Terms |
55 | ||||||
1.4 |
GWI as Agent of Borrowers and Guarantors |
55 | ||||||
1.5 |
Exchange Rates; Currency Equivalents |
56 | ||||||
1.6 |
Additional Alternative Currencies |
56 | ||||||
2. |
THE REVOLVING CREDIT FACILITIES. |
57 | ||||||
2.1 |
Commitment to Lend |
57 | ||||||
2.2 |
Commitment Fee |
57 | ||||||
2.3 |
Reduction of Applicable Commitments |
58 | ||||||
2.4 |
Evidence of Debt |
58 | ||||||
2.5 |
Interest on the Revolving Loans |
59 | ||||||
2.6 |
Requests for Loans |
60 | ||||||
2.7 |
The Swinglines |
60 | ||||||
2.8 |
Borrowers’ Conversion Options; Continuation of Loans |
64 | ||||||
2.9 |
Funds for Loans |
65 | ||||||
2.10 |
Reallocation of Commitments |
66 | ||||||
2.11 |
Sharing of Payments by Lenders |
68 | ||||||
3. |
THE TERM LOANS. |
69 | ||||||
3.1 |
Commitment to Lend |
69 | ||||||
3.2 |
Term Notes |
70 | ||||||
3.3 |
Schedule of Installment Payments of Principal of the Term Loans |
71 | ||||||
3.4 |
Interest on the Term Loans |
71 | ||||||
3.5 |
Notification of Term Loans |
72 | ||||||
3.6 |
Interest Periods |
72 | ||||||
4. |
MANDATORY REPAYMENT OF LOANS. |
72 | ||||||
4.1 |
Maturity of Loans |
72 | ||||||
4.2 |
Mandatory Repayments of Loans |
72 | ||||||
4.3 |
Optional Repayments of Loans |
73 | ||||||
5. |
LETTERS OF CREDIT. |
75 | ||||||
5.1 |
Letter of Credit Commitments |
75 | ||||||
5.2 |
[Reserved] |
78 | ||||||
5.3 |
Letter of Credit Payments |
78 | ||||||
5.4 |
Obligations Absolute |
80 | ||||||
5.5 |
Role of Issuing Lender |
81 | ||||||
5.6 |
Addition of an Issuing Lender |
81 | ||||||
5.7 |
Applicability of International Standby Practices and Uniform Customs |
81 |
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5.8 |
Letter of Credit Amounts |
81 | ||||||
5.9 |
Letters of Credit Issued for Subsidiaries |
82 | ||||||
5.10 |
Letter of Credit Fee |
82 | ||||||
5.11 |
Conflict with Issuer Documents |
82 | ||||||
5.12 |
Letter of Credit Reports |
82 | ||||||
6. |
CERTAIN GENERAL PROVISIONS. |
82 | ||||||
6.1 |
Fees |
82 | ||||||
6.2 |
Funds for Payments |
83 | ||||||
6.3 |
Computations |
85 | ||||||
6.4 |
Inability to Determine Applicable Offered Rate |
86 | ||||||
6.5 |
Illegality |
87 | ||||||
6.6 |
Additional Costs, Etc. |
87 | ||||||
6.7 |
Capital Adequacy |
88 | ||||||
6.8 |
Certificate |
89 | ||||||
6.9 |
Compensation for Losses |
89 | ||||||
6.10 |
Interest After Default |
89 | ||||||
6.11 |
Replacement of Lenders |
89 | ||||||
6.12 |
Taxes |
90 | ||||||
6.13 |
Interest Limitation |
98 | ||||||
6.14 |
Subordination Agreements of the Borrowers |
98 | ||||||
6.15 |
Indirect Tax |
99 | ||||||
6.16 |
Cash Collateral |
99 | ||||||
6.17 |
Defaulting Lenders |
100 | ||||||
6.18 |
Incremental Facilities |
101 | ||||||
6.19 |
Extension Offers |
105 | ||||||
6.20 |
Refinancing Amendments |
107 | ||||||
6.21 |
Payments Generally; Administrative Agent’s Clawback |
108 | ||||||
6.22 |
Parallel Debt |
110 | ||||||
6.23 |
Designated Subsidiaries |
111 | ||||||
7. |
GUARANTY. |
113 | ||||||
7.1 |
Guaranty |
113 | ||||||
7.2 |
Guarantors Agreement to Pay Enforcement Costs, Etc. |
113 | ||||||
7.3 |
Effectiveness; Enforcement |
114 | ||||||
7.4 |
Waivers |
114 | ||||||
7.5 |
Expenses |
114 | ||||||
7.6 |
Concerning Joint and Several Liability of the Guarantors |
115 | ||||||
7.7 |
Indemnity |
117 | ||||||
7.8 |
Keepwell |
118 | ||||||
8. |
REPRESENTATIONS AND WARRANTIES. |
118 | ||||||
8.1 |
Corporate Authority |
118 | ||||||
8.2 |
Governmental Approvals |
119 | ||||||
8.3 |
Title to Properties; Leases |
119 | ||||||
8.4 |
Financial Statements and Projections |
120 | ||||||
8.5 |
No Material Changes, Etc.; Solvency |
120 | ||||||
8.6 |
Franchises, Patents, Copyrights, Etc. |
120 |
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8.7 |
Litigation |
120 | ||||||
8.8 |
Compliance with Other Instruments, Laws, Etc. |
121 | ||||||
8.9 |
Tax Status |
121 | ||||||
8.10 |
No Event of Default |
121 | ||||||
8.11 |
Investment Company Act |
121 | ||||||
8.12 |
Certain Transactions |
121 | ||||||
8.13 |
ERISA and Employee Benefit Plan Compliance |
121 | ||||||
8.14 |
Use of Proceeds; Regulations U and X |
123 | ||||||
8.15 |
Environmental Compliance |
123 | ||||||
8.16 |
Subsidiaries, Etc. |
125 | ||||||
8.17 |
Capitalization |
125 | ||||||
8.18 |
Fiscal Year |
125 | ||||||
8.19 |
Operation of Railroads |
125 | ||||||
8.20 |
Disclosure |
125 | ||||||
8.21 |
Registration or Stamp Tax |
125 | ||||||
8.22 |
Representations as to Foreign Obligors |
126 | ||||||
8.23 |
Trustee |
126 | ||||||
8.24 |
Code of Banking Practice |
127 | ||||||
8.25 |
OFAC, Patriot Act and FCPA |
127 | ||||||
8.26 |
EEA Financial Institution |
127 | ||||||
8.27 |
Collateral Documents |
127 | ||||||
9. |
AFFIRMATIVE COVENANTS OF THE BORROWERS. |
128 | ||||||
9.1 |
Punctual Payment |
128 | ||||||
9.2 |
Maintenance of Office |
129 | ||||||
9.3 |
Records and Accounts |
129 | ||||||
9.4 |
Financial Statements, Certificates and Information |
130 | ||||||
9.5 |
Notices |
131 | ||||||
9.6 |
Preservation of Existence; Maintenance of Properties |
133 | ||||||
9.7 |
Insurance |
133 | ||||||
9.8 |
Taxes |
133 | ||||||
9.9 |
Inspection of Properties and Books, Etc. |
134 | ||||||
9.10 |
Compliance with Laws, Contracts, Licenses, and Permits |
134 | ||||||
9.11 |
[Reserved] |
134 | ||||||
9.12 |
Use of Proceeds |
134 | ||||||
9.13 |
Further Assurances |
134 | ||||||
9.14 |
Additional Subsidiaries; Additional Collateral |
134 | ||||||
9.15 |
Notice to Dutch Central Bank |
138 | ||||||
9.16 |
Collateral Further Assurances |
138 | ||||||
9.17 |
Information Regarding Collateral |
139 | ||||||
9.18 |
UK Pensions Matters |
140 | ||||||
10. |
CERTAIN NEGATIVE COVENANTS OF THE BORROWERS. |
140 | ||||||
10.1 |
Restrictions on Indebtedness |
140 | ||||||
10.2 |
Restrictions on Liens |
142 | ||||||
10.3 |
Restrictions on Investments |
145 | ||||||
10.4 |
Distributions and Restricted Payments |
146 | ||||||
10.5 |
Merger, Permitted Acquisitions and Disposition of Assets |
147 |
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Page | ||||||||
10.6 |
Sale and Leaseback |
150 | ||||||
10.7 |
Compliance with Environmental Laws |
150 | ||||||
10.8 |
[Reserved] |
150 | ||||||
10.9 |
Business Activities |
150 | ||||||
10.10 |
Capitalization |
150 | ||||||
10.11 |
Fiscal Year |
150 | ||||||
10.12 |
Restrictions on Negative Pledges and Upstream Limitations |
151 | ||||||
10.13 |
Transactions with Affiliates |
151 | ||||||
11. |
FINANCIAL COVENANTS OF THE BORROWERS. |
151 | ||||||
11.1 |
Total Leverage Ratio |
151 | ||||||
11.2 |
Interest Coverage Ratio |
151 | ||||||
11.3 |
Senior Secured Leverage Ratio. |
151 | ||||||
12. |
[RESERVED]. |
152 | ||||||
13. |
CONDITIONS TO ALL BORROWINGS AFTER THE CLOSING DATE. |
152 | ||||||
13.1 |
Representations True; No Event of Default |
152 | ||||||
13.2 |
Borrowing Request |
152 | ||||||
13.3 |
Initial Borrowing of Designated Subsidiaries |
152 | ||||||
14. |
EVENTS OF DEFAULT; ACCELERATION; ETC. |
153 | ||||||
14.1 |
Events of Default and Acceleration |
153 | ||||||
14.2 |
Remedies Upon Event of Default |
156 | ||||||
14.3 |
Application of Funds |
157 | ||||||
15. |
SETOFF. |
159 | ||||||
16. |
THE AGENTS. |
159 | ||||||
16.1 |
Appointment and Authority |
159 | ||||||
16.2 |
Rights as a Lender |
160 | ||||||
16.3 |
Exculpatory Provisions |
161 | ||||||
16.4 |
Reliance by Agents |
161 | ||||||
16.5 |
Delegation of Duties |
162 | ||||||
16.6 |
Resignation of Agents |
162 | ||||||
16.7 |
Non-Reliance on Agents and Other Lenders |
163 | ||||||
16.8 |
No Other Duties, Etc. |
163 | ||||||
16.9 |
Agents May File Proofs of Claim |
163 | ||||||
16.10 |
Closing Documentation, Etc. |
164 | ||||||
16.11 |
Guaranty and Collateral Matters |
164 | ||||||
16.12 |
Payments |
165 | ||||||
16.13 |
Indemnity |
166 | ||||||
16.14 |
Withholding Taxes |
166 | ||||||
16.15 |
Security in the Province of Québec |
166 | ||||||
16.16 |
Lender ERISA Representation. |
167 | ||||||
17. |
EXPENSES. |
168 |
-iv-
Page | ||||||||
18. |
INDEMNIFICATION. |
169 | ||||||
19. |
SURVIVAL OF COVENANTS, ETC. |
170 | ||||||
20. |
SUCCESSORS AND ASSIGNS. |
170 | ||||||
20.1 |
General Conditions |
170 | ||||||
20.2 |
Assignments |
171 | ||||||
20.3 |
Register |
173 | ||||||
20.4 |
Participations |
174 | ||||||
20.5 |
Resignation as Issuing Lender After Assignment |
175 | ||||||
20.6 |
New Notes |
176 | ||||||
20.7 |
Special Purpose Funding Vehicle |
176 | ||||||
20.8 |
Assignment to GWI |
177 | ||||||
21. |
NOTICES, ETC. |
178 | ||||||
21.1 |
Notices Generally |
178 | ||||||
21.2 |
Electronic Communications |
178 | ||||||
21.3 |
Change of Address, Etc. |
179 | ||||||
21.4 |
Reliance by Agents, Issuing Lender and Lenders |
179 | ||||||
22. |
GOVERNING LAW. |
179 | ||||||
23. |
HEADINGS. |
180 | ||||||
24. |
COUNTERPARTS. |
180 | ||||||
25. |
ENTIRE AGREEMENT, ETC. |
180 | ||||||
26. |
WAIVER OF JURY TRIAL, ETC. |
180 | ||||||
27. |
CONSENTS, AMENDMENTS, WAIVERS, ETC. |
181 | ||||||
28. |
SEVERABILITY. |
183 | ||||||
29. |
TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. |
183 | ||||||
30. |
USA PATRIOT ACT. |
183 | ||||||
31. |
PARI PASSU TREATMENT. |
184 | ||||||
32. |
NO ADVISORY OR FIDUCIARY RESPONSIBILITY. |
185 | ||||||
33. |
[Reserved]. |
186 | ||||||
34. |
ATTORNEYS. |
186 | ||||||
35. |
AMENDMENT AND RESTATEMENT. |
186 |
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Page | ||||||||
36. |
Electronic Execution of Assignments and Certain Other Documents. |
187 | ||||||
37. |
Acknowledgement and Consent to Bail-In of EEA Financial Institutions. |
187 |
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EXHIBITS AND SCHEDULES
Exhibit A-1 |
Form of Domestic Revolving Note | |
Exhibit A-2 |
Form of European Note | |
Exhibit A-3 |
[Reserved] | |
Exhibit A-4 |
Form of Canadian Revolving Note | |
Exhibit A-5 |
Form of UK Revolving Note | |
Exhibit B-1 |
Form of Domestic Term Note | |
Exhibit B-2 |
[Reserved] | |
Exhibit B-3 |
[Reserved] | |
Exhibit B-4 |
Form of UK Term Note | |
Exhibit C-1 |
Form of Loan Request | |
Exhibit C-2 |
Form of Swingline Loan Request | |
Exhibit D |
Form of Compliance Certificate | |
Exhibit E |
Form of Instrument of Adherence (Guaranty) | |
Exhibit F |
Form of Assignment and Assumption | |
Exhibit G-1 |
Form of Perfection Certificate | |
Exhibit G-2 |
Form of Perfection Certificate Supplement | |
Exhibit G-3 |
Form of Canadian Perfection Certificate | |
Exhibit H-1 |
Form of U.S. Security Agreement | |
Exhibit H-2 |
Form of Canadian Security Agreement | |
Exhibit H-3 |
[Reserved] | |
Exhibit H-4 |
Form of Dutch Security Agreement | |
Exhibit H-5 |
[Reserved] | |
Exhibit I |
Form of Pari Passu Intercreditor Agreement | |
Exhibit J |
Form of Second Lien Intercreditor Agreement | |
Exhibit K |
Form of Solvency Certificate | |
Exhibit L |
Form of U.S. Tax Compliance Certificate | |
Exhibit M |
Form of Local Counsel Opinion | |
Exhibit N |
Form of Election to Participate | |
Exhibit O |
Form of Election to Terminate | |
Exhibit P |
Form of Letter of Credit Report | |
Exhibit Q |
Form of Beneficial Ownership Certification Form | |
Schedule I |
Guarantors | |
Schedule II |
Lenders and Commitments | |
Schedule III |
Existing Letters of Credit | |
Schedule IV |
Mortgaged Property | |
Schedule 1.1(a) |
Restatement Effective Date Cash Management Banks | |
Schedule 1.1(b) |
Restatement Effective Date Hedge Banks | |
Schedule 1.1(c) |
Mandatory Cost Formulae | |
Schedule 6.12(g) |
Treaty Lenders | |
Schedule 8.2 |
Governmental Approvals | |
Schedule 8.3 |
Titles to Properties; Leases | |
Schedule 8.12 |
Certain Transactions | |
Schedule 8.13 |
ERISA | |
Schedule 8.15 |
Environmental Compliance | |
Schedule 8.16(a) |
Subsidiaries | |
Schedule 8.16(b) |
Joint Ventures | |
Schedule 9.7 |
Insurance |
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Schedule 10.1 |
Existing Indebtedness | |
Schedule 10.2 |
Existing Liens | |
Schedule 10.3 |
Existing Investments | |
Schedule 10.13 |
Transactions with Affiliates | |
Schedule 16.11(a) |
Released Foreign Guarantors | |
Schedule 16.11(b) |
Foreign Release Documents | |
Schedule 21 |
Agents’ Offices; Certain Addresses for Notices |
-viii-
THIRD AMENDED AND RESTATED SENIOR SECURED SYNDICATED
FACILITY AGREEMENT
This THIRD AMENDED AND RESTATED SENIOR SECURED SYNDICATED FACILITY AGREEMENT (this “Credit Agreement”) is made as of June 5, 2018 by and among (a) GENESEE & WYOMING INC., a Delaware corporation (“GWI”), and RP ACQUISITION COMPANY TWO, a Delaware corporation (“RP” and, together with GWI and any Designated Domestic Subsidiary (as defined below), collectively, the “Domestic Borrowers”), (b) QUEBEC GATINEAU RAILWAY INC., a corporation constituted under the laws of Quebec, Canada (the “Canadian Borrower”), (c) GWI HOLDING B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands with its statutory seat in Amsterdam, the Netherlands (“Euro Holdings”) and ROTTERDAM RAIL FEEDING B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands with its statutory seat in Dordrecht, the Netherlands (“Rotterdam Rail Feeding” and together with Euro Holdings, the “European Borrowers”), (d) GWI UK ACQUISITION COMPANY LIMITED, a company incorporated in England and Wales whose registered office is at 0xx Xxxxx, 0 Xx. Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx (the “UK Borrower”), (e) the Subsidiaries of GWI listed on Schedule I and any other Person which may become a guarantor of the U.S. Obligations in accordance with §9.14 (the “U.S. Guarantors”), (f) each Canadian Guarantor (as defined below), (g) each UK Guarantor (as defined below), (h) each European Guarantor (as defined below), (i) any other Person which may become a guarantor of the Foreign Obligations in accordance with §9.14 (together with the Canadian Guarantors, the UK Guarantors and the European Guarantors, the “Foreign Guarantors”), (j) each Designated Subsidiary (as defined below), (k) BANK OF AMERICA, N.A., a national banking association and the other lending institutions listed on Schedule II, (l) BANK OF AMERICA, N.A., as administrative agent for itself and such lending institutions (acting in such capacity, the “Administrative Agent”), Domestic Swingline Lender and Issuing Lender, (m) BANK OF AMERICA, N.A., acting through its Canada branch, as Canadian Swingline Lender and Canadian Agent, (n) BANK OF AMERICA, N.A., as European Agent and UK Agent, (o) BANK OF AMERICA XXXXXXX XXXXX INTERNATIONAL LIMITED, as European Swingline Lender and UK Swingline Lender, (p) the Co-Lead Arrangers (as defined below), (q) JPMORGAN CHASE BANK, N.A., CITIGROUP GLOBAL MARKETS INC. and MUFG BANK, LTD., as co-syndication agents (the “Co-Syndication Agents”), (r) BRANCH BANKING AND TRUST COMPANY, BMO XXXXXX BANK, N.A., XXXXXX XXXXXXX SENIOR FUNDING, INC., SUMITOMO MITSUI BANKING CORPORATION, TD BANK, N.A. and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as co-documentation agents (the “Co-Documentation Agents”) and (s) CAPITAL ONE, N.A., CITIZENS BANK, NATIONAL ASSOCIATION, FIFTH THIRD BANK, HSBC BANK USA, NATIONAL ASSOCIATION, PNC BANK, N.A., SANTANDER BANK, N.A., SUNTRUST BANK and U.S. BANK NATIONAL ASSOCIATION, as senior managing agents (the “Senior Managing Agents”).
WHEREAS, the Borrowers, the Guarantors party thereto, certain lenders, the Administrative Agent, and the other parties thereto entered into the Amended and Restated Senior Secured Syndicated Facility Agreement, dated as of May 27, 2014 (the “Original Credit Agreement”), as amended by Amendment No. 1 to the Amended and Restated Senior Secured Syndicated Facility Agreement (“Amendment No. 1”) and replaced in its entirety by the Second Amended and Restated Senior Secured Syndicated Facility Agreement, dated March 20, 2015 (as amended from time to time prior to the date hereof, the “Existing Credit Agreement”);
WHEREAS, pursuant to Amendment No. 3 to Second Amended and Restated Senior Secured Syndicated Facility Agreement, dated as of June 5, 2018 (“Amendment No. 3”) the parties thereto have agreed to amend and restate in its entirety the Existing Credit Agreement and to replace it in its entirety with this Credit Agreement; and
WHEREAS, in furtherance of the foregoing, the Borrowers have requested that the Lenders (as defined below) provide Term Loans and Revolving Loan Commitments, and the Lenders have indicated their willingness to lend and the Issuing Lender (as defined below) has indicated its willingness to issue letters of credit, in each case, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto hereby covenant and agree as follows:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1 Definitions. The following terms shall have the meanings set forth in this §1 or elsewhere in the provisions of this Credit Agreement referred to below:
“Acquired Business”. See definition of Consolidated EBITDA.
“Adjustment Date”. Each April 1, May 16, August 15 and November 15.
“Administrative Agent”. See preamble.
“Administrative Agent’s Office”. With respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 21 (as may be updated from time to time with notice to GWI and the Lenders) with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify GWI and the Lenders, which office may include any Affiliate of the Administrative Agent or any domestic or foreign branch of the Administrative Agent or such Affiliate. Unless the context otherwise requires each reference to the Administrative Agent shall include its applicable Administrative Agent’s Office.
“Administrative Questionnaire”. An Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Lender”. See §6.11.
“Affiliate”. Any Person that would be considered to be an affiliate of another Person under Rule 144(a) of the Rules and Regulations of the Securities and Exchange Commission, as in effect on the date hereof, if such other Person were issuing securities.
“Agent Parties”. See §21.2(b).
“Agents”. Collectively, the Administrative Agent, the Canadian Agent, the European Agent and the UK Agent and any additional agent appointed pursuant to the terms hereof.
“Agent’s Fees”. All fees payable to the Agents pursuant to the Fee Letter.
“Aggregate Canadian Revolving Loan Commitments”. The Canadian Revolving Loan Commitments of all the Canadian Lenders.
“Aggregate Designated Subsidiary Commitments”. With respect to any applicable Designated Subsidiary, the Designated Subsidiary Commitments of all the Designated Subsidiary Lenders to such Designated Subsidiary.
“Aggregate Domestic Revolving Loan Commitments”. The Domestic Revolving Loan Commitments of all the Domestic Lenders.
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“Aggregate European Commitments”. The European Commitments of all the European Lenders.
“Aggregate Foreign Currency Revolving Loan Commitments”. Collectively, the Aggregate Canadian Revolving Loan Commitments, the Aggregate European Commitments, the Aggregate UK Revolving Loan Commitments and the Aggregate Designated Subsidiary Commitments to Designated Foreign Subsidiaries.
“Aggregate Other Designated Subsidiary Commitments”. With respect to any applicable Designated Subsidiary, the Other Designated Subsidiary Commitments of all the Other Designated Subsidiary Lenders to such Designated Subsidiary.
“Aggregate UK Revolving Loan Commitments”. The UK Revolving Loan Commitments of all the UK Lenders.
“Alternative Currency”. Each of Euro, Canadian Dollars and GBP, together with each other currency (other than Dollars) that is approved in accordance with §1.6.
“Amendment No. 1”. See preamble.
“Amendment No. 2”. Amendment No. 2 to this Credit Agreement, dated October 20, 2016.
“Amendment No. 2 Effective Date”. October 20, 2016.
“Amendment No. 3”. See preamble.
“Amendment No. 3 Effective Date”. June 5, 2018.
“Annex”. See §8.25.
“Applicable Agent”. The Administrative Agent, the Canadian Agent, the European Agent, the UK Agent or any other applicable Agent, as the context requires.
“Applicable Agent’s Office”. The Administrative Agent’s Office, the Canadian Agent’s Office, the European Agent’s Office, the UK Agent’s Office or any other Applicable Agent’s Office, as the context requires.
“Applicable Borrower”. Any Domestic Borrower, any European Borrower, the Canadian Borrower, the UK Borrower or any Designated Borrower (if any), as the context requires.
“Applicable Commitment”. Each Lender’s Domestic Revolving Loan Commitment, Canadian Revolving Loan Commitment, European Commitment, UK Revolving Loan Commitment or Designated Subsidiary Commitments (if any), as applicable.
“Applicable Floating Rate”. The Base Rate, Canadian Base Rate, Euro Base Rate or UK Overnight Rate, as the context requires.
“Applicable Floating Rate Loans”. Base Rate Loans, Canadian Base Rate Loans, Euro Base Rate Loans or UK Overnight Rate Loans, as the context requires.
“Applicable Foreign Loan Party Documents”. See §8.22(a).
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“Applicable Lenders”. The Domestic Lenders, the Canadian Lenders, the European Lenders, the UK Lenders or the Other Designated Subsidiary Lenders, as the context requires.
“Applicable Margin”. For each period commencing on an Adjustment Date through the date immediately preceding the next Adjustment Date (each, a “Rate Adjustment Period”), the Applicable Margin shall be the applicable margin set forth below with respect to the Total Leverage Ratio, as determined for the fiscal period ending immediately prior to the applicable Rate Adjustment Period (except for any Rate Adjustment Period beginning on April 1 of any calendar year for which the Applicable Margin will be determined by reference to the Total Leverage Ratio for the fiscal period ending on the immediately preceding December 31).
Level |
Total Leverage Ratio |
Applicable Floating Rate (other than UK Overnight Rate) Applicable Margin |
Applicable Offered Rate, UK Overnight Rate, Letter of Credit Applicable Margin |
Commitment Fee Rate |
||||||||||
I |
Greater than or equal to 4.25 to 1.00 |
1.000 | % | 2.000 | % | 0.300 | % | |||||||
II |
Greater than or equal to 3.75 to 1.00 but less than 4.25 to 1.00 |
0.750 | % | 1.750 | % | 0.300 | % | |||||||
III |
Greater than or equal to 2.50 to 1.00 but less than 3.75 to 1.00 |
0.500 | % | 1.500 | % | 0.250 | % | |||||||
IV |
Greater than or equal to 2.00 but less than 2.50 to 1.00 |
0.250 | % | 1.250 | % | 0.200 | % | |||||||
V |
Less than 2.00 to 1.00 |
0.000 | % | 1.000 | % | 0.200 | % |
Notwithstanding the foregoing, if the Borrowers fail to deliver any Compliance Certificate pursuant to §9.4(e), then, for the period commencing on the date such Compliance Certificate was due pursuant to §9.4(e) through the date such Compliance Certificate is actually delivered to the Lenders, the Applicable Margin shall be the highest Applicable Margin set forth above.
“Applicable Offered Rate”. In the case of (a) Domestic Loans, European Loans and UK Loans, the LIBOR Rate or (b) Canadian Revolving Loans, the BA Rate.
“Applicable Offered Rate Loans”. In the case of (a) Domestic Loans, European Loans and UK Loans, LIBOR Rate Loans or (b) Canadian Revolving Loans, the BA Rate.
“Applicable Register”. The Domestic Register, the European Register, the Canadian Register, the UK Register or, with respect to any applicable Designated Subsidiary, any Designated Subsidiary Register, as applicable.
“Applicable Required Lenders”. The Required Domestic Lenders, the Required Canadian Lenders, the Required European Lenders, the Required UK Lenders and/or, with respect to any applicable Designated Subsidiary, the Required Designated Subsidiary Lenders, as the context requires.
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“Applicable Swingline Lender”. The Domestic Swingline Lender, the European Swingline Lender, the Canadian Swingline Lender or the UK Swingline Lender, as the context requires.
“Approved Fund”. Any Fund that is administered or managed by (a) a Lender, (b) a Lender Affiliate or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignee Group”. Two or more assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption”. An assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by §20.2), and accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form approved by the Administrative Agent.
“Auditor’s Determination”. See §7.1(g).
“Australian Dollars or AUD”. The lawful currency of the Commonwealth of Australia.
“Aus Intercompany Loan”. A senior or subordinated unsecured loan from a Domestic Borrower and/or the Co-Investor or any Affiliate thereof to either the Aus JV or any subsidiary thereof in an initial aggregate principal amount of up to the aggregate amount of net cash proceeds of the Incremental Term Loans that may be incurred pursuant to the Aus Reorganization Incremental Commitments (or other indebtedness permitted to be incurred hereunder); provided that (i) such Aus Intercompany Loan shall be senior to any subordinated shareholder loans and (ii) any obligations owed by the Aus JV and its Subsidiaries under any Aus Intercompany Loan may be loaned by or assigned to the Co-Investor (or any affiliate thereof) in a proportion not to exceed the pro rata share of the Capital Stock of the Aus JV held by the Co-Investor (or any Affiliate thereof). For the avoidance of doubt, an Aus Qualified Intercompany Loan is an Aus Intercompany Loan.
“Aus JV”. GWALP; provided that such entity shall be a direct or indirect Subsidiary of GWI and GWI shall directly or indirectly control not less than a majority of the voting and economic interests of such entity.
“Aus Local Financing”. Has the meaning assigned to such term in the Existing Credit Agreement.
“Aus Qualified Intercompany Loan”. A senior or subordinated unsecured loan from a Domestic Borrower and/or the Co-Investor or any Affiliate thereof to either the Aus JV or any Subsidiary thereof in an initial aggregate principal amount of up to the aggregate amount of net cash proceeds of the Incremental Term Loans that may be incurred pursuant to the Aus Reorganization Incremental Commitments (or other indebtedness permitted to be incurred hereunder); provided that (x) the Aus JV and its Subsidiaries shall have no Indebtedness for borrowed money other than (i) the Aus Qualified Intercompany Loan (it being understood and agreed that any obligations owed by the Aus JV and its Subsidiaries under the Aus Qualified Intercompany Loan may be loaned by or assigned to the Co-Investor (or any Affiliate thereof) in a proportion not to exceed the pro rata share of the Capital Stock of the Aus JV held by the Co-Investor (or any Affiliate thereof) and such Aus Qualified Intercompany Loan held by the Co-Investor shall be on the terms not materially less favorable (taken as a whole) to the Aus JV than the terms (taken as a whole) of the Aus Qualified Intercompany Loan held by a Domestic Borrower), (ii) any outstanding subordinated shareholder loans as of the Restatement Effective Date, (iii) the GWA (North) Debt and (iv) the Aus Local Financing and (y) such Aus Qualified Intercompany Loan shall be senior to any subordinated shareholder loans.
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“Aus Reorganization Incremental Commitments”. Has the meaning assigned to such term in the Existing Credit Agreement.
“AustralAsia”. AustralAsia Railway Corporation (ABN 48 839 400 411), a statutory body corporate constituted under the AustralAsia Railway Corporation Act 1996 (NT).
“Auto-Extension Letter of Credit”. See §5.1.2(b).
“Bail-In Action”. The exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation”. With respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“BA Rate”. For any day, the simple average of the annual rates applicable to Canadian Dollar bankers’ acceptances displayed and identified as such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Xxxxxx Monitor Money Rates Service as of approximately 10:00 a.m. (Toronto time) on such day (or, if such day is not a Business Day, as of 10:00 a.m. (Toronto time) on the immediately preceding Business Day), provided that if such rates do not appear on the CDOR Page at such time on such date, the rate for such date will be the annual discount rate (rounded upward to the nearest whole basis point) as of 10:00 a.m. (Toronto time) on such day at which the Canadian Agent is offering to purchase Canadian Dollar bankers’ acceptances accepted by it having such specified term (or a term as closely as possible comparable to such specified term). If the BA Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Bank of America”. Bank of America, N.A., a national banking association.
“Bank of America-Canada Branch”. Bank of America, N.A., acting through its Canada branch, together with its successors.
“Bank of America-London Branch”. Bank of America, N.A., acting through its London branch, together with its successors.
“Bank of Canada Rate”. The “Bank Rate” as set by the Bank of Canada, as quoted on the applicable Bloomberg screen page, or, if no such rate is so published, the Bank Rate shall be the “Bank Rate” set by the Bank of Canada as determined by the Canadian Agent.
“Base Rate”. For any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the LIBOR Rate for a one-month Interest Period plus 1%; and if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
“Base Rate Loans”. All or any portion of any Domestic Revolving Loans and all or any portion of the Domestic Term Loan bearing interest calculated by reference to the Base Rate.
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“Beneficial Ownership Certification”. A certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in substantially the form of Exhibit Q or any other form approved by the Administrative Agent.
“Beneficial Ownership Regulation”. 31 C.F.R. § 1010.230.
“Benefit Amount”. See §7.6(f).
“Benefit Plan”. Any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Borrower DTTP Filing”. An H.M. Revenue & Customs’ Form DTTP2 duly completed and filed by the UK Borrower, which: (i) where it relates to a Treaty Lender that becomes a Lender in respect of a UK Loan on or before the Restatement Effective Date, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in schedule §6.12(g) and is filed with H.M. Revenue & Customs within 30 days of the Restatement Effective Date; or (ii) where it relates to a Treaty Lender that becomes a Lender in respect of a UK Loan after the Restatement Effective Date, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the applicable Assignment and Assumption and is filed with H.M. Revenue & Customs within 30 days of the date of that Assignment and Assumption.
“Borrowers”. Collectively, the Domestic Borrowers, the European Borrowers, the Canadian Borrower, the UK Borrower and each Designated Subsidiary that shall become a party to this Credit Agreement pursuant to §6.23, and the term Borrower shall apply to each of them individually.
“Borrowers Materials”. See §9.4.
“Building”. See §8.27(b).
“Business Day”. 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, as applicable, (i) New York, (ii) London, (iii) the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located, (iv) the province where the Canadian Agent’s Office with respect to Obligations denominated in Canadian Dollars is located or (v) the country where the European Agent’s Office with respect to Obligations denominated in Euro is located and:
(a) if such day relates to any interest rate settings as to a LIBOR Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such LIBOR Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Credit Agreement in respect of any such LIBOR 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 LIBOR Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such LIBOR Rate Loan, or any other dealings in Euro to be carried out pursuant to this Credit Agreement in respect of any such LIBOR Rate Loan, means a TARGET Day;
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(c) if such day relates to any interest rate settings as to an Applicable Offered 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 an Applicable Offered 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 Credit Agreement in respect of any such Applicable Offered 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 Agent”. With respect to local funding procedures described herein, Bank of America-Canada Branch in its capacity as Canadian agent under any of the Loan Documents, and with respect to any other provisions set forth herein, Bank of America, and in each case, any successor Canadian Agent.
“Canadian Agent’s Office”. With respect to Canadian Dollars, Bank of America-Canada Branch’s address and, as appropriate, account as set forth on Schedule 21 (as may be updated from time to time with notice to the Canadian Borrower) with respect to such currency, or such other address or account with respect to such currency as the Canadian Agent may from time to time notify the Canadian Borrower and the Lenders, which office may include any Affiliate of the Canadian Agent or any domestic or foreign branch of the Canadian Agent or such Affiliate. Unless the context otherwise requires each reference to the Canadian Agent shall include its applicable Canadian Agent’s Office.
“Canadian Base Rate”. The greater of (a) the rate of interest per annum announced by the Canadian Agent (or its successors) from time to time as its prime rate in effect for Canadian Dollar loans in Canada at its principal office in Toronto, Ontario, and (b) the thirty (30) day BA Rate plus 1⁄2 of 1% per annum. The “prime rate” is a rate set by Bank of America – Canada Branch based upon various factors including Bank of America – Canada Branch’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America – Canada Branch shall take effect at the opening of business on the day specified in the public announcement of such change; provided that in no event shall the Canadian Base Rate be deemed less than zero.
“Canadian Base Rate Loans”. All or any portion of any Canadian Revolving Loan bearing interest calculated by reference to the Canadian Base Rate.
“Canadian Borrower”. See preamble.
“Canadian Dollar Equivalent”. At any time, (a) with respect to any amount denominated in Canadian Dollars, such amount, and (b) with respect to any amount denominated in any currency other than Canadian Dollars, the equivalent amount thereof in Canadian Dollars as determined by the Applicable Agent or the Issuing Lender, 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 other currency.
“Canadian Dollars” or “Cdn. $”. Lawful currency of Canada.
“Canadian Guarantors”. The Subsidiaries of GWI listed on Schedule I as “Canadian Guarantors” and any other Restricted Subsidiary organized under the laws of any province or territory of Canada or the federal laws of Canada that has executed an Instrument of Adherence (Guaranty) in accordance with §§9.14 or 9.16.
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“Canadian Lenders”. The Lenders listed on Schedule II, acting in their role as lenders of the Canadian Revolving Loans and any other Person who becomes an assignee of any rights and obligations of a Canadian Lender pursuant to §20.
“Canadian Obligations”. All indebtedness, obligations and liabilities of the Canadian Borrower to the Canadian Lenders, the Canadian Swingline Lender, the Issuing Lender, any Hedge Bank and the Canadian Agent, individually or collectively at any time existing (a) under or in respect of or in connection with any of the Canadian Revolving Notes, Letters of Credit or Letter of Credit Applications in respect of the Canadian Borrower, or Canadian Revolving Loans or Canadian Swingline Loans made, or Reimbursement Obligations incurred and including any interest thereon, Canadian Revolving Loan Commitment Fees or other fees or expenses in respect thereof, (b) under any Hedging Agreement between the Canadian Borrower and any Hedge Bank, and (c) under the Loan Documents.
“Canadian Perfection Certificate”. A certificate in the form of Exhibit G-3 or any other form approved by the Canadian Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.
“Canadian Plans”. All the employee benefit, fringe benefit, supplemental unemployment benefit, bonus, incentive, profit sharing, termination, change of control, pension, retirement, stock option, stock purchase, stock appreciation, health, welfare, medical, dental, disability, life insurance and similar plans, programmes, arrangements or practices relating to the current or former employees, officers or directors of the Canadian Borrower and the Canadian Guarantors maintained, sponsored or funded by the Canadian Borrower or the Canadian Guarantors (as the case may be), whether written or oral, funded or unfunded, insured or self-insured, registered or unregistered.
“Canadian Register”. See §20.3(d).
“Canadian Restricted Subsidiary”. Each Canadian Guarantor and any other Restricted Subsidiary organized under the laws of any province or territory of Canada or the federal laws of Canada that has not executed an Instrument of Adherence (Guaranty) in accordance with §9.14 as a result of a legal impediment or a material adverse tax impact to GWI and its Subsidiaries with respect to such Restricted Subsidiary providing a Guaranty as reasonably determined by the Borrowers and any Agent.
“Canadian Revolving Loan”. The revolving credit loans made or to be made by the Canadian Lenders to the Canadian Borrower pursuant to §2.1.
“Canadian Revolving Loan Commitment”. As to each Canadian Lender, its obligation to make a Canadian Revolving Loan or to participate in Canadian Swingline Loans to the Canadian Borrower pursuant to §2.1 in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Canadian Lender’s name on Schedule II, as such Schedule may be updated from time to time pursuant to §§2.10, 6.23(a) or 20, or in the Assignment and Assumption pursuant to which a Canadian Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Credit Agreement.
“Canadian Revolving Loan Commitment Fee”. See §2.2(c).
“Canadian Revolving Notes”. See §2.4.
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“Canadian Security Agreement”. Collectively, each security agreement and hypothec, in substantially the form of Exhibit H-2 (together with each other security agreement, hypothec and security agreement supplement or hypothec supplement delivered pursuant to §9.14 or §9.16).
“Canadian Swingline Lender”. Bank of America-Canada Branch in its capacity as lender of Canadian Swingline Loans hereunder.
“Canadian Swingline Loan”. Any loan made by the Canadian Swingline Lender to the Canadian Borrower pursuant to §2.7.1.
“Canadian Swingline Sublimit”. $15,000,000. The Canadian Swingline Sublimit is part of, and not in addition to, the Aggregate Canadian Revolving Loan Commitments.
“Cape Breton”. Cape Breton & Central Nova Scotia Railway Limited, a company constituted under the laws of Nova Scotia, Canada.
“Capital Assets”. Fixed assets, both tangible (such as land, buildings, fixtures, machinery and equipment) and intangible (such as patents, copyrights, trademarks, franchises and good will); provided that Capital Assets shall not include any item customarily charged directly to expense or depreciated over a useful life of twelve (12) months or less in accordance with GAAP.
“Capital Expenditures”. Amounts paid or indebtedness incurred (without duplication) by the Borrowers or their Restricted Subsidiaries in connection with the purchase or lease by any of the Borrowers or any of their Restricted Subsidiaries of Capital Assets that would be required to be capitalized and shown on the balance sheet of such Person in accordance with GAAP, less amounts reimbursed by third parties.
“Capital Impairment”. See §7.1(g).
“Capital Stock”. Any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
“Capitalized Leases”. Leases by form or implication, under which any of the Borrowers or any of their Restricted Subsidiaries is the lessee, lessor or obligor, the discounted future rental payment obligations under which are required to be capitalized on the balance sheet of the lessee, lessor or obligor in accordance with GAAP; provided that all obligations of any Person that are or would be characterized as operating lease obligations in accordance with GAAP on the Closing Date (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations (and not as obligations in respect of Capitalized Leases) for purposes of this Credit Agreement regardless of any change in GAAP following the date that would otherwise require such obligations to be recharacterized as obligations in respect of Capitalized Leases.
“Cash Collateralize”. To pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Agents, Issuing Lender or any Swingline Lender (as applicable) and the Lenders, as collateral for Letter of Credit Obligations, Obligations in respect of Swingline Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the Issuing Lender or Swingline Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the Issuing Lender or any Swingline Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
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“Cash Equivalents”. (a) Marketable direct obligations issued by, or unconditionally guaranteed by, the United States government, the Canadian government, the government of the European Union, the government of the Netherlands or the Australian government, or issued by any agency thereof and backed by the full faith and credit of the United States, Canada, the European Union, the Netherlands or Australia in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States, Canada, the European Union, the Netherlands or Australia or any state or province thereof having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-2 by Standard & Poor’s Ratings Services (“S&P”) or P-2 by Xxxxx’x Investors Service, Inc. (“Moody’s”), or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government, the Canadian government, the government of the European Union, the government of the Netherlands or the Australian government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, province, commonwealth or territory of the United States, Canada, the European Union, the Netherlands or Australia, by any political subdivision or taxing authority of any such state, province, commonwealth or territory or by any other foreign government, the securities of which state, province, commonwealth, territory, political subdivision, taxing authority or other foreign government (as the case may be) are rated at least A by S&P or A by Xxxxx’x; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar funds that invest in assets satisfying the requirements of clauses (a) through (f) of this definition; or (h) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Xxxxx’x and (iii) have portfolio assets of at least $5,000,000,000.
“Cash Management Agreement”. Any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
“Cash Management Bank”. Any Person (x) that, at the time it enters into a Cash Management Agreement, is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender, in its capacity as a party to such Cash Management Agreement or (y) that is listed on Schedule 1.1(a) and, in the case of this clause (y), any Affiliate of such Person.
“CERCLA”. See §8.15.
“CFC”. A Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“CFC Holdco”. A Subsidiary that is a corporation, partnership, or disregarded entity for United States federal income tax purposes and has no material assets other than Capital Stock of one or more CFCs.
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“Change in Law”. The occurrence, after the date of this Credit 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, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, implemented or issued.
“Class”. When used in reference to (a) any Loan, refers to whether such Loan or Loans are Revolving Loans, Incremental Revolving Loans, Extended Revolving Loans (and related swingline loans thereunder), Term Loans made on the Restatement Effective Date, Incremental Term Loans, Extended Term Loans or Swingline Loans, (b) any Commitment, refers to whether such Commitment is a Revolving Loan Commitment made on the Restatement Effective Date, Incremental Revolving Loan Commitment (of the same series and any related swingline commitments thereunder), Extended Revolving Loan Commitment (of the same series and any related swingline commitments thereunder), or Incremental Term Commitment and (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments. Incremental Term Loans, Extended Term Loans, Incremental Revolving Loans (and Incremental Revolving Loan Commitments made pursuant thereto) and Extended Revolving Loan Commitments (and Extended Revolving Loans made pursuant thereto) that have different terms and conditions shall be construed to be in different Classes.
“Closing Date”. October 1, 2012.
“Code”. The U.S. Internal Revenue Code of 1986, as amended.
“Co-Bookrunning Manager”. Each of Bank of America, N.A., Citigroup Global Markets Inc., X.X. Xxxxxx Securities LLC and MUFG Bank, Ltd.
“Co-Documentation Agents”. See preamble.
“Co-Investor”. An investor reasonably acceptable to GWI.
“Co-Lead Arranger”. Each of Bank of America, N.A., Citigroup Global Markets Inc., JPMorgan Chase Bank, N.A. and MUFG Bank, Ltd.
“Collateral”. Collectively, all of the property pledged or granted as collateral pursuant to the Collateral Documents, the Mortgaged Property and all other property of whatever kind and nature subject or purported to be subject from time to time to a Lien under any Collateral Document. Notwithstanding anything to the contrary herein or in the Security Agreement, “Collateral” shall not include (i) any Excluded Property (as defined in any Security Agreement), (ii) the Aus Intercompany Loan and (iii) the Capital Stock of the Aus JV.
“Collateral Documents”. Collectively, the Security Agreements, the Intellectual Property Security Agreements, the Mortgages, each of the collateral assignments, Security Agreement supplements, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to §§9.14 and 9.16 hereof, §§9.14 and 9.16 of the Existing Credit
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Agreement and §9.19 of the Original Credit Agreement and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
“Commitment Fee”. Collectively, the Domestic Revolving Loan Commitment Fee, the European Commitment Fee, the Canadian Revolving Loan Commitment Fee and the UK Revolving Loan Commitment Fee.
“Commitment Fee Rate”. The Commitment Fee Rate set forth in accordance with the definition of Applicable Margin hereof.
“Commitment Percentage”. With respect to each Lender, the percentage set forth next to such Lender’s name on Schedule II as such Lender’s applicable percentage of the Aggregate Domestic Revolving Loan Commitments, Aggregate Canadian Revolving Loan Commitments, Aggregate European Commitments, Aggregate UK Revolving Loan Commitments and, with respect to each applicable Designated Subsidiary (if any), Aggregate Designated Subsidiary Commitments and with respect to the Term Loans, such Lender’s applicable percentage of the outstanding Domestic Term Loan, UK Term Loan and, with respect to any applicable Designated Subsidiary, Designated Subsidiary Term Loan, as applicable, as the same may be adjusted in accordance with §§2.10, 6.17, 6.23(a) or 20.
“Commitments”. Collectively, or individually, the Domestic Revolving Loan Commitment, the European Commitment, the Canadian Revolving Loan Commitment, the UK Revolving Loan Commitment and/or Incremental Revolving Loan Commitments.
“Commodity Exchange Act”. The Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Company Assignment”. See §20.8.
“Compliance Certificate”. See §9.4(e).
“Consolidated” or “consolidated”. With reference to any term defined herein, shall mean that term as applied to the accounts of the Borrowers and their Restricted Subsidiaries, consolidated in accordance with GAAP.
“Consolidated EBITDA”. For any fiscal period of the Borrowers and their Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated Net Income for such fiscal period, provided that the net amount of any increase in Consolidated EBITDA pursuant to this clause (a) as a result of any equity in the net income (loss) of any equity investment of any Borrower or any Restricted Subsidiary in any Unrestricted Subsidiary, minority equity investment, unincorporated joint venture or contractual joint venture and including, for the avoidance of doubt, any voting trust substantially similar to the voting trust entered into on the Closing Date (such net increase, if any, the “Non-Restricted Subsidiary Net Income”), when aggregated with amounts calculated pursuant to clause (Y) of the next succeeding paragraph and clause (h) of this definition, shall not exceed 17.5% of Consolidated EBITDA for the relevant Test Period (calculated prior to giving effect to the Non-Restricted Subsidiary Net Income and adjustments pursuant to clause (Y) of the next succeeding paragraph and clause (h) of this definition), plus in each case, to the extent reducing Consolidated Net Income and without duplication, (b) Consolidated Total Interest Expense for such fiscal period, plus (c) income tax expense for such fiscal period, plus (d) the aggregate amount of depreciation and amortization for such fiscal period, plus (e) all losses from the sale of assets of the Borrowers and their Restricted Subsidiaries (except to the extent the losses from sales of assets are related to sales of assets purchased during the fiscal period), plus (f) the amount of dividends or
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distributions or other payments paid in cash from the Aus JV to the Borrowers and their Restricted Subsidiaries (including any payments to the Borrowers and their Restricted Subsidiaries in respect of any Aus Intercompany Loan); provided that if the Aus Qualified Intercompany Loan is outstanding in an amount in excess of $50,000,000 and the Aus JV is a direct or indirect Subsidiary of GWI, all Consolidated EBITDA of the Aus JV and its Subsidiaries shall be added back pursuant to this clause (f); provided further that if a portion of the Aus Qualified Intercompany Loan is owned by Co-Investor, Consolidated EBITDA of the Aus JV and its Subsidiaries for the purposes of this clause (f) shall equal Consolidated EBITDA of the Aus JV multiplied by the percentage of the Aus Qualified Intercompany Loan owned by GWI and its Restricted Subsidiaries, plus (g) for any such fiscal period that includes any fiscal quarter ending within 12 months of the closing date of any Permitted Acquisition, transaction costs in connection with such Permitted Acquisition in an aggregate amount as may be certified in a certificate by an authorized officer of GWI delivered to the Administrative Agent, plus (h) the amount of cost savings, operating and expense reductions and synergistic benefits projected by the Borrowers in good faith as being (x) reasonably identifiable and factually supportable and certified as such in a certificate of an authorized officer of GWI delivered to the Administrative Agent and (y) reasonably anticipated to be realized within twelve months after the closing date of any Permitted Acquisition or other Investment; provided that the amount calculated pursuant to this clause (h), when aggregated with the Non-Restricted Subsidiary Net Income calculated pursuant to clause (a) above and the amount calculated pursuant to clause (Y) of the next succeeding paragraph, shall not exceed 17.5% of Consolidated EBITDA for the relevant fiscal period (calculated prior to giving effect to any adjustment pursuant to clause (Y) of the next succeeding paragraph, this clause (h) and the Non-Restricted Subsidiary Net Income), plus (i) Non-Cash Charges, plus (j) [Reserved], minus (k) to the extent included in computing Consolidated Net Income, all gains from the sale of assets of the Borrowers and their Restricted Subsidiaries (except to the extent the gains from sales of assets are related to sales of assets purchased during such fiscal period), minus (l) non-cash income in connection with Hedging Agreements incurred in the ordinary course of business. Notwithstanding the foregoing the Consolidated EBITDA of the Aus JV and its Subsidiaries shall be excluded from Consolidated EBITDA except as provided in clause (f) above.
Notwithstanding anything to the contrary herein, Consolidated EBITDA shall (X) be calculated (other than for purposes of the definition of Interest Coverage Ratio and §11.2) on a pro forma basis in accordance with GAAP to give effect to any Permitted Acquisition and any disposition of assets (other than any dispositions in the ordinary course of business) consummated at any time on or after the first day of the relevant fiscal period and prior to the date of determination as if each such Permitted Acquisition had been effected on the first day of such period and as if each such disposition had been consummated on the day prior to the first day of such period; provided that (i) such calculations shall be made with reference to the audited financial statements of the businesses acquired by the Borrowers or any of their Restricted Subsidiaries through Permitted Acquisitions during such fiscal period (each, an “Acquired Business”) or the Restricted Subsidiaries acquired or formed during such fiscal period (each, a “New Subsidiary”) for the most recent fiscal year ended of such Acquired Businesses or New Subsidiaries and any unaudited quarterly statements which have been received since the most recent fiscal year ended of such Acquired Business or New Subsidiaries, or (ii) in the event that there are only unaudited financial results or no financial results available with respect to such Acquired Businesses or New Subsidiaries, such calculations shall be made with reference to other acceptable financial statements or reasonable estimates of such past performance made by the Borrowers based on existing data and other available information, such financial statements or, as the case may be, estimates to be agreed upon by the Borrowers and the Administrative Agent and (Y) include the amount of “run-rate” add-backs projected by the Borrowers in good faith as being (i) reasonably identifiable and factually supportable and certified as such in a certificate of an authorized officer of GWI delivered to the Administrative Agent and (ii) reasonably anticipated to be realized within twelve months and attributable to purchased assets that are purchased in connection with a take-or-pay contract during such Test Period and Consolidated EBITDA attributable to purchased assets that are part of a program to replace substantially similar assets that were
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previously leased by GWI or its subsidiaries prior to such purchase; provided that the amount calculated pursuant to this clause (Y), when aggregated with the Non-Restricted Subsidiary Net Income calculated pursuant to clause (a) above and with the amount calculated pursuant to clause (h) above, shall not exceed 17.5% of Consolidated EBITDA for the relevant fiscal period (calculated prior to giving effect to any adjustment pursuant to this clause (Y), the Non-Restricted Subsidiary Net Income and clause (h) above).
Subject to the adjustments provided under the preceding paragraph, Consolidated EBITDA shall be deemed to be $144,411,000, $157,074,000, $146,537,000 and $127,143,000 for the fiscal quarters ended June 30, 2017, September 30, 2017, December 31, 2017 and March 31, 2018, respectively.
“Consolidated Funded Debt”. As at any date of determination, an amount equal to the aggregate amount of Indebtedness of the Borrowers and their Restricted Subsidiaries, determined on a consolidated basis, related to the borrowing of money, the obtaining of credit or any outstanding contingent acquisition purchase price amounts (which the parties hereto agree for the purposes of this definition does not include Indebtedness permitted under §§10.1(b), (c), (d), (e), (h), (i) and (j)), whether absolute or contingent and including, to the extent not included in Indebtedness, all Indebtedness guaranteed by any of the Borrowers or any of their Restricted Subsidiaries. Consolidated Funded Debt shall not include any committed purchase amounts for the acquisition of railroad and railroad-related material, equipment or supplies.
“Consolidated Net Income”. The consolidated net income of the Borrowers and their Restricted Subsidiaries, after deduction of all expenses, taxes, and other proper charges, determined in accordance with GAAP, after eliminating therefrom all extraordinary nonrecurring items of income or loss; plus principal payments received by the Borrowers and their Restricted Subsidiaries during such period with respect to Capitalized Leases.
“Consolidated Total Assets”. The total assets of the Borrowers and their Subsidiaries, on a consolidated basis, as shown on GWI’s financial statements prepared in accordance with GAAP determined as of the last day of each fiscal quarter.
“Consolidated Total Interest Expense”. For any period, the aggregate amount of interest required to be paid or accrued by the Borrowers and their Restricted Subsidiaries during such period on all Indebtedness of the Borrowers and their Restricted Subsidiaries related to the borrowing of money or the obtaining of credit outstanding during all or any part of such period, including payments consisting of interest in respect of any Capitalized Lease and including commitment fees, agency fees, facility fees, balance deficiency fees and similar fees or expenses in connection with the borrowing of money (other than non-cash interest or fees) solely to the extent that such fees are properly included as interest expense in accordance with GAAP.
“Consolidated Total Tangible Assets”. Consolidated Total Assets less intangible assets as defined by GAAP.
“Conversion Request”. A notice given by the Domestic Borrowers, European Borrowers, Canadian Borrower, UK Borrower or Designated Subsidiary to the Applicable Agent of such Borrower’s or Designated Subsidiary’s election to convert or continue a Domestic Loan, European Loan, Canadian Revolving Loan, UK Loan, Designated Subsidiary Revolving Loan or Designated Subsidiary Term Loan in accordance with §2.8 or §3.5, as applicable.
“Corporate Restructuring”. The moving of (a) any direct or indirect domestic Subsidiary to become a Subsidiary of GWI or a Subsidiary of any other domestic Subsidiary of GWI, (b) any direct or indirect European, Canadian or UK Subsidiary of GWI to become a Subsidiary of any other European, Canadian or UK Subsidiary of GWI; provided, however, that no Restricted Subsidiary shall become an
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Unrestricted Subsidiary as a result of such restructuring and (c) any Subsidiary to become a Subsidiary of GWI or any other Subsidiary in connection with bona fide tax planning activities; provided, however, that (w) a Restricted Subsidiary may become an Unrestricted Subsidiary as a result of such activities only so long as Consolidated Total Assets of GWI and its Restricted Subsidiaries after giving pro forma effect thereto are not less than 80% of Consolidated Total Assets of GWI and its Restricted Subsidiaries reflected on the most recent consolidated balance sheet of GWI delivered before the Restatement Effective Date, (x) a Guarantor may become a non-Guarantor as a result of such activities only so long as the Consolidated Total Assets of GWI and its Restricted Subsidiaries attributable to Loan Parties after giving pro forma effect thereto are not less than 80% of Consolidated Total Assets of GWI and its Restricted Subsidiaries attributable to Loan Parties reflected on the most recent consolidated balance sheet of GWI delivered before the Restatement Effective Date, (y) taken as a whole, the value of the Collateral securing the Obligations is not materially reduced and (z) the security interests of the Lenders in the Collateral, taken as a whole, are not materially impaired.
“Co-Syndication Agents”. See preamble.
“Credit Agreement”. This Third Amended and Restated Senior Secured Syndicated Facility Agreement, as amended, amended and restated, modified or supplemented and in effect from time to time, including the Schedules and Exhibits.
“Credit Agreement Refinancing Indebtedness”. (a) Permitted First Priority Refinancing Debt, (b) Permitted Second Priority Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment (including, without limitation, Other Term Loans and Other Revolving Loans), in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Term Loans or existing Revolving Loans (or unused Revolving Loan Commitments), or any then-existing Credit Agreement Refinancing Indebtedness (“Refinanced Debt”); provided that (i) such Indebtedness has a later maturity and a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt, (ii) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt plus accrued interest, fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing, (iii) such Refinanced Debt shall be repaid, defeased or satisfied and discharged on a dollar-for-dollar basis, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained and (iv) the aggregate unused revolving commitments under such Credit Agreement Refinancing Indebtedness shall not exceed the unused Revolving Loan Commitments being replaced.
“Creditors”. See §7.7.
“CTA”. The United Kingdom Corporation Tax Xxx 0000.
“Debtor Relief Laws”. The Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), the Canada Transportation Act, the Bankruptcy Act (Netherlands), the English Insolvency Act 1986 (as amended) and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, administration, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Canada, the Netherlands, the European Union, England and Wales or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
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“Debtor Relief Reservations”. (a) The event that not every obligation will be enforced by a court in accordance with its terms in every circumstance, the enforcement being subject, inter alia, to the nature of the available remedies, (b) any limitation by bankruptcy, moratorium, fraudulent conveyance (Actio Pauliana) or similar laws affecting creditor’s rights generally, (c) the time-barring of claims under applicable statutes of limitation, (d) rules against penalties and similar principles and (e) any other generally accepted limitations of law, including those which are set out as qualifications as to matters of law in the legal opinions delivered to the Applicable Agent under this Credit Agreement.
“Default”. See §14.1.
“Defaulting Lender”. Subject to §6.17(b), any Applicable Lender that, as determined by the Administrative Agent in its reasonable judgment, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit or Swingline Loans, within three Business Days of the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent and GWI in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable Default, shall be specifically identified in such writing) has not been satisfied, (b) has notified GWI or the Administrative Agent in writing that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by GWI or the Administrative Agent, to confirm in a manner satisfactory to GWI and the Administrative Agent that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and GWI), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and as of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to §6.17(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrowers, the Issuing Lender, the Swingline Lenders and each other Lender promptly following such determination.
“Derivatives Counterparty”. See definition of Restricted Payments.
“Designated Domestic Subsidiary”. Any Designated Subsidiary that is not a Foreign Subsidiary.
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“Designated Domestic Subsidiary Obligations”. All indebtedness, obligations and liabilities of any Designated Domestic Subsidiary now or hereafter existing under this Credit Agreement, whether for principal, interest, fees, expenses or otherwise.
“Designated Foreign Subsidiary”. Any Designated Subsidiary that is a Foreign Subsidiary.
“Designated Foreign Subsidiary Obligations”. All indebtedness, obligations and liabilities of the Designated Subsidiary to the Lenders and the Administrative Agent, individually or collectively at any time existing (a) under or in respect of or in connection with any notes executed by the Designated Subsidiary or Loans made to the Designated Subsidiary, including any interest thereon, or fees or expenses in respect thereof, and (b) under the Loan Documents.
“Designated Subsidiary”. Any Subsidiary of GWI that GWI owns directly or indirectly a majority of the Voting Stock therein and is designated for borrowing privileges under this Credit Agreement pursuant to §6.23.
“Designated Subsidiary Alternative Currency”. See §6.23(a).
“Designated Subsidiary Commitment”. As to each Lender, its obligation to make Loans to any applicable Designated Subsidiary pursuant to §6.23, or in the Assignment and Assumption pursuant to which a Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Credit Agreement.
“Designated Subsidiary Revolving Loans”. Any Loans made pursuant to a Designated Subsidiary Commitment.
“Designated Subsidiary Term Loans”. Any Term Loans made to a Designated Subsidiary in accordance with the terms hereof.
“Designated Subsidiary Lenders”. See §6.23(f).
“Designated Subsidiary Register”. See §20.3(f).
“Designation”. See §6.23(a).
“Disposition” or “Dispose”. The sale, transfer, license, lease or other disposition (including any sale and leaseback transaction, condemnation, casualty event or other taking) of any property by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any capital stock, notes or accounts receivable or any rights and claims associated therewith. Notwithstanding the foregoing, any Disposition with an aggregate fair value of less than $100,000,000 per transaction or series of related transactions shall not be deemed to be a Disposition.
“Distribution”. The declaration or payment of any dividend on or in respect of any shares of any class of Capital Stock of any Person, other than dividends payable solely in shares of common stock or similar non-preferred equity interests of such Person; the purchase, redemption, or other retirement of any shares of any class of Capital Stock of any Person, directly or indirectly through a Subsidiary of such Person or otherwise; the return of capital by any Person to its shareholders or equity holders as such; or any other distribution on or in respect of any shares of any class of Capital Stock of any Person.
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“Dollar Equivalent”. At any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Applicable Agent or the Issuing Lender, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such other currency.
“Dollars” or “$”. Dollars in lawful currency of the United States of America.
“Domestic Borrowers”. See preamble.
“Domestic Lenders”. The Lenders listed on Schedule II, acting in their role as lenders of the the Domestic Loans and any other Person who becomes an assignee of any rights and obligations of a Domestic Lender pursuant to §20.
“Domestic Loans”. The Domestic Revolving Loans and the Domestic Term Loans.
“Domestic Notes”. The Domestic Revolving Notes and the Domestic Term Notes.
“Domestic Register”. See §20.3(a).
“Domestic Revolving Loan Commitment”. With respect to each Domestic Lender, the amount set forth on Schedule II, as such Schedule may be updated from time to time pursuant to §§2.10(c), 6.23(a) or 20, or in the Assignment and Assumption pursuant to which a Domestic Lender becomes a party hereto, as applicable, as the amount of such Lender’s commitment to make Domestic Revolving Loans to, to participate in Domestic Swingline Loans to, and to participate in the issuance and extension of Letters of Credit for the account of, the Domestic Borrowers (and, in the case of Letters of Credit, the Canadian Borrower and the European Borrowers), as such amount may be adjusted from time to time in accordance with this Credit Agreement.
“Domestic Revolving Loan Commitment Fee”. See §2.2(a).
“Domestic Revolving Loans”. The revolving credit loans to be made by the Domestic Lenders to the Domestic Borrowers pursuant to §2.1.
“Domestic Revolving Notes”. See §2.4.
“Domestic Swingline Lender”. Bank of America in its capacity as lender of Domestic Swingline Loans hereunder.
“Domestic Swingline Loan”. Any loan made by the Domestic Swingline Lender to the Domestic Borrowers pursuant to §2.7.1.
“Domestic Swingline Sublimit”. $50,000,000. The Domestic Swingline Sublimit is part of, and not in addition to, the Aggregate Domestic Revolving Loan Commitments.
“Domestic Term Lender”. A Lender of Domestic Term Loans.
“Domestic Term Loans”. See §3.1(a).
“Domestic Term Note”. See §3.2(a).
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“Do not have Unreasonably Small Capital”. For the period from the Restatement Effective Date through the Maturity Date of the Loans, GWI and its Subsidiaries taken as a whole after consummation of the transactions occurring on the Restatement Effective Date and contemplated herein is and will be a going concern and has and will have sufficient capital to reasonably ensure that it will continue to be a going concern for such period.
“Drawdown Date”. The date on which any Loan is made or is to be made, and the date on which all or any portion of any Loan is converted or continued in accordance with §2.8 or 3.5, as applicable; provided that, solely for purpose of calculating interest hereunder, the Drawdown Date with respect to the Loans exchanged pursuant to Amendment No. 3 shall be the Drawdown Date for the Loans under the Existing Credit Agreement from which such Loans have been exchanged from.
“Dutch Security Agreements”. Collectively, each deed of pledge, in substantially the forms set out in Exhibit H-4 (together with each other security document delivered pursuant to §§9.14 or 9.16).
“XXXXX”. See §9.5.3.
“EEA Financial Institution”. (a) Any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”. Any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”. Any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effect”. Any change, event, effect, development or circumstance.
“Election to Participate”. An Election to Participate substantially in the form of Exhibit N.
“Election to Terminate”. An Election to Terminate substantially in the form of Exhibit O.
“Eligible Assignee”. Any Person that meets the requirements to be an assignee under §§20.2(c), (d) and (f) and §20.8 (subject to such consents, if any, as may be required under §20.2(d)).
“EMU Legislation”. The legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Laws”. See §8.15(a).
“EPA”. See §8.15(b).
“ERISA”. The Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
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“ERISA Affiliate”. Any Subsidiary of GWI and any trade or business (whether or not incorporated) that, together with GWI or any Subsidiary of GWI, is treated as a single employer within the meaning of §414(b) or (c) of the Code (or under §§414(m) and (o) of the Code solely for purposes of provisions relating to §412 of the Code).
“ERISA Event”. (a) A Reportable Event with respect to a Pension Plan; (b) the withdrawal of GWI or any ERISA Affiliate from a Multiple Employer Plan pursuant to §4063 of ERISA during a plan year in which such entity was a “substantial employer” (as defined in §4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under §4062(e) of ERISA; (c) a complete or partial withdrawal by GWI or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination under §4041 of ERISA, or the termination of a Multiemployer Plan under §4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under §4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an “at-risk” plan within the meaning of §430 of the Code or §303 of ERISA; (h) receipt of notice that the PBGC has instituted proceedings to terminate a Multiemployer Plan or that a Multiemployer Plan has been determined to be in “endangered” or “critical” status within the meaning of §432 of the Code or §305 of ERISA; or (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under §4007 of ERISA, upon GWI or any ERISA Affiliate.
“EU Bail-In Legislation Schedule”. The EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Euro” and “EUR”. The lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
“Euro Base Rate”. For any day, the rate of interest per annum equal to the higher of (i) the rate of interest per annum at which overnight deposits in Euro, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by Bank of America-London Branch to major banks in the local market or other applicable offshore interbank market, and (ii) the cost of funds to Bank of America-London Branch with respect to such amount for such day, expressed as a rate of interest per annum; provided that in no event shall the Euro Base Rate be deemed less than zero.
“Euro Base Rate Loan”. All or any portion of a European Loan bearing interest calculated by reference to the Euro Base Rate.
“Euro Equivalent”. At any time, (a) with respect to any amount denominated in Euro, such amount, and (b) with respect to any amount denominated in any currency other than Euro, the equivalent amount thereof in Euro as determined by the Applicable Agent or the Issuing Lender, 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 Euro with such other currency.
“Eurocurrency Interbank Market”. Any lawful recognized market in which deposits of Dollars, Euro, GBP, Australian Dollars, Canadian Dollars or any other Alternative Currency are offered by international banking units of United States banking institutions and by foreign banking institutions to each other and in which foreign currency and exchange operations or eurocurrency funding operations are customarily conducted.
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“Eurocurrency Reserve Percentage”. For any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The LIBOR Rate for each outstanding LIBOR Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.
“European Agent”. With respect to local funding procedures described herein, Bank of America in its capacity as European agent under any of the Loan Documents, and with respect to any other provisions set forth herein, Bank of America, and in each case, any successor European Agent.
“European Agent’s Office”. With respect to Euro, Bank of America’s address and, as appropriate, account as set forth on Schedule 21 (as may be updated from time to time with notice to the European Borrowers) with respect to such currency, or such other address or account with respect to such currency as the European Agent may from time to time notify the European Borrowers and the Lenders, which office may include any Affiliate of the European Agent or any domestic or foreign branch of the European Agent or such Affiliate. Unless the context otherwise requires each reference to the European Agent shall include its applicable European Agent’s Office.
“European Borrowers”. The “European Borrowers” as defined in the preamble and any Designated Subsidiary organized under the laws of any country in the European Union (other than the United Kingdom) that has executed an Election to Participate and Designated Subsidiary Joinder in accordance with §6.23 and, subject to the second sentence of §6.23(b), until such European Borrower or Designated Subsidiary, as applicable, delivers an Election to Terminate.
“European Commitment”. As to each European Lender, its obligation to make European Loans or to participate in European Swingline Loans to the European Borrowers pursuant to §2.1 in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such European Lender’s name on Schedule II, as such Schedule may be updated from time to time pursuant to §§2.10(c) or 20, or in the Assignment and Assumption pursuant to which a European Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Credit Agreement.
“European Commitment Fee”. See §2.2(b).
“European Guarantors”. The Subsidiaries of GWI listed on Schedule I as “European Guarantors” and any other Restricted Subsidiary organized under the laws of any country in the European Union (other than England and Wales) that has executed an Instrument of Adherence (Guaranty) in accordance with §9.14.
“European Lenders”. The Lenders listed on Schedule II, acting in their role as lenders of the European Loans and any other Person who becomes an assignee of any rights and obligations of a European Lender pursuant to §20.
“European Loan Parties”. The European Borrowers and European Guarantors.
“European Loans”. The revolving credit loans made or to be made by the European Lenders to the European Borrowers pursuant to §2.1.
“European Notes”. See §2.4.
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“European Obligations”. All indebtedness, obligations and liabilities of the European Borrowers to the European Lenders, the European Swingline Lender, the Issuing Lender, any Hedge Bank and the European Agent, individually or collectively at any time existing (a) under or in respect of or in connection with any of the European Notes, Letters of Credit or Letter of Credit Applications in respect of the European Borrowers, or European Loans or European Swingline Loans made, or Reimbursement Obligations incurred and including any interest thereon, European Commitment Fees or other fees or expenses in respect thereof, (b) under any Hedging Agreement between the European Borrowers, any Hedge Bank, and (c) under the Loan Documents.
“European Register”. See §20.3(b).
“European Restricted Subsidiary”. Each European Guarantor and any other Restricted Subsidiary organized under the laws of any country in the European Union that has not executed an Instrument of Adherence (Guaranty) in accordance with §9.14 as a result of a legal impediment or a material adverse tax impact to GWI and its Subsidiaries with respect to such Restricted Subsidiary providing a Guaranty as reasonably determined by the Borrowers and any Agent.
“European Swingline Lender”. Bank of America Xxxxxxx Xxxxx International Limited in its capacity as lender of European Swingline Loans hereunder.
“European Swingline Loan”. Any loan made by the European Swingline Lender to the European Borrowers pursuant to §2.7.1.
“European Swingline Sublimit”. $20,000,000. The European Swingline Sublimit is part of, and not in addition to, the Aggregate European Commitments.
“Event of Default”. See §14.1.
“Excluded Subsidiary”. (a) the UK Borrower, (b) RailInvest, (c) any Subsidiary of RailInvest organized under the laws of England and Wales and (d) any Immaterial Foreign Subsidiary.
“Excluded Swap Obligation”. With respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (i) by virtue of such Guarantor’s failure to constitute an “eligible contract participant”, as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to §7.8 and any other applicable keepwell, support, or other agreement for the benefit of such Guarantor and any and all applicable guarantees of such Guarantor’s Swap Obligations by other Loan Parties), at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (ii) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Guarantor is a “financial entity”, as defined in section 2(h)(7)(C) of the Commodity Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties and hedge bank applicable to such Swap Obligations. If a Swap Obligation arises under a master agreement governing more than one Swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to the Swap for which such guarantee or security interest is or becomes excluded in accordance with the first sentence of this definition.
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“Excluded Taxes”. With respect to any Agent, any Lender, any Swingline Lender, the Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document, (a) any Taxes imposed on or measured by its net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by a jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, or by any jurisdiction as a result of any other present or former connection between such recipient and the jurisdiction imposing such Tax (or any political subdivision thereof), other than any such connection arising solely from such recipient having executed, delivered or performed its obligations, received or perfected a security interest or received a payment under, or enforced, or engaged in any other transaction pursuant to, any other Loan Document, (b) any branch profits Tax imposed by the United States, or any similar Tax, imposed by any jurisdiction described above in clause (a), (c) in the case of any Lender (other than a Lender that is an assignee pursuant to a request by a Borrower under §6.11), (i) with respect to any U.S. Obligation, any United States federal withholding Tax, with respect to any Canadian Obligation, any Canadian withholding Tax and with respect to any European Obligation, any Dutch withholding Tax, in each case that is required to be imposed on amounts payable to a Lender pursuant to the laws in force at the time such Lender becomes a party hereto (or designates a new Lending Office) or, if later, the Restatement Effective Date, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the applicable Borrower with respect to such United States federal withholding Tax, Canadian withholding Tax or Dutch withholding Tax, respectively, pursuant to §6.12(a)(ii) or (c) or (ii) any withholding Tax that is attributable to such Lender’s failure to comply with §6.12(e)(ii), (d) any United States federal withholding Tax imposed on such recipient under FATCA, (e) [Reserved], (f) with respect to any U.S. Obligation, any backup withholding Tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to deliver the form described in clause (A) of §6.12(e)(ii) and (g) with respect to any UK Loan, any withholding or deductions on account of United Kingdom Taxes imposed on amounts payable to a UK Lender (which, for the avoidance of doubt, shall be subject to the gross-up and indemnification provisions of §6.12(g)).
“Existing Credit Agreement”. See preamble.
“Existing Letters of Credit”. Those letters of credit issued by Bank of America for the account of GWI or any of its Restricted Subsidiaries prior to the Closing Date and listed on Schedule III.
“Extended Loans”. Collectively, Extended Revolving Loans and/or Extended Term Loans.
“Extended Revolving Loan Commitment”. See §6.19(a).
“Extended Revolving Loan Facility”. See §6.19(a).
“Extended Revolving Loans”. See §6.19(a).
“Extended Term Loan Facility”. See §6.19(a).
“Extended Term Loans”. See §6.19(a).
“Extending Lender”. An Extending Term Lender or an Extending Revolving Loan Lender.
“Extending Revolving Loan Lender”. See §6.19(a).
“Extending Term Lender”. See §6.19(a).
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“Extension”. See §6.19(a).
“Extension Offer”. See §6.19(a).
“Facility”. See §6.19(a).
“FASB ASC”. The Accounting Standards Codification of the Financial Accounting Standards Board.
“Fair Value”. The amount at which the assets (both tangible and intangible), in their entirety, of GWI and its Subsidiaries taken as a whole would change hands between a willing buyer(s) and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
“FATCA”. §§1471 through 1474 of the Code (including, for the avoidance of doubt, any agreements entered into pursuant to §1471(b)(1) of the Code) as of the date hereof (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations (whether temporary or proposed) that are issued thereunder or official governmental interpretations thereof and any intergovernmental agreements implementing the foregoing.
“Federal Funds Rate”. For any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent; provided further that in no event shall the Federal Funds Rate be deemed less than zero.
“Fee Letter”. The amended and restated fee letter dated as of August 9, 2012 among MLPF&S, X.X. Xxxxxx Securities LLC, Citigroup Global Markets, Inc. and GWI.
“Finance Party”. A Co-Lead Arranger, a Co-Bookrunning Manager, a Co-Syndication Agent, a Co-Documentation Agent, an Agent or a Lender.
“Financial Covenant Election”. (i) The incurrence by the Borrowers or their Restricted Subsidiaries of unsecured indebtedness in an amount in excess of $250,000,000 since the Restatement Effective Date shall have occurred and (ii) the delivery of written notice to the Administrative Agent by GWI of its election to make a Financial Covenant Election.
“Foreign Borrowers”. Collectively, the Canadian Borrower, the European Borrowers, the UK Borrower and each Designated Foreign Subsidiary.
“Foreign Government Scheme or Arrangement”. See §8.13(f).
“Foreign Guaranteed Obligations”. See §7.1(a).
“Foreign Guarantors”. See preamble.
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“Foreign Lender”. Any Lender that is not a “United States Person” within the meaning of §7701(a)(30) of the Code.
“Foreign Loan Party”. Collectively, the Foreign Borrowers and the Foreign Guarantors.
“Foreign Obligations”. Collectively, the Canadian Obligations, the European Obligations, the UK Obligations and the Designated Foreign Subsidiary Obligations. Foreign Obligations shall in no event include any Excluded Swap Obligations.
“Foreign Plan”. See §8.13(f).
“Foreign Subsidiary”. Any Subsidiary that is not organized under the laws of the United States, any state thereof or the District of Columbia.
“FRA”. The United States of America, represented by the Secretary of Transportation acting through the Administrator of the Federal Railroad Administration or the Federal Railroad Administrator’s designee.
“Fronting Exposure”. At any time there is a Defaulting Lender, (a) with respect to the Issuing Lender, such Defaulting Lender’s Commitment Percentage of the outstanding Letter of Credit Obligations other than Letter of Credit Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lenders, such Defaulting Lender’s Commitment Percentage of the applicable Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund”. Any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“Funding Currency”. See §31(c).
“GAAP” or “generally accepted accounting principles”. Principles that are (i) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors, as in effect from time to time, and (ii) consistently applied with past financial statements of the Borrowers adopting the same principles or (iii) generally accepted accounting principles in the relevant entity’s jurisdiction of incorporation.
“GBP Equivalent”. At any time, (a) with respect to any amount denominated in GBP, such amount, and (b) with respect to any amount denominated in any currency other than GBP, the equivalent amount thereof in GBP as determined by the Applicable Agent or the Issuing Lender, 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 GBP with such other currency.
“GBP” or “£”. The lawful currency of the United Kingdom.
“Goderich”. Goderich-Exeter Railway Company Limited, a corporation constituted under the laws of Ontario, Canada.
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“Governing Documents”. With respect to any Person, its certificate or articles of incorporation, its by-laws or, as the case may be, its certificate of formation, its operating agreement or other constitutive documents and all shareholder agreements, voting trusts and similar arrangements applicable to any of its Capital Stock.
“Government Grants”. Those certain agreements entered into in the ordinary course of business pursuant to which a governmental body will pay for a certain portion of a capital project associated with a railroad located in that governmental body’s jurisdiction.
“Governmental Authority”. Any foreign, federal, state, provincial, regional, local, municipal or other government, or any department, commission, board, bureau, agency, public authority or instrumentality thereof, or any court or arbitrator (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).
“Granting Lender”. See §20.7.
“Guaranteed Obligations”. Collectively, the U.S. Guaranteed Obligations and the Foreign Guaranteed Obligations.
“Guarantors”. Collectively, GWI, RP, the Canadian Borrower, the European Borrowers, the UK Borrower, the Foreign Guarantors and the U.S. Guarantors, each of which guaranty certain Obligations pursuant to §7.
“Guaranty”. The guaranty of certain Obligations by each of the Guarantors set forth in §7 of this Credit Agreement.
“GWA (North)”. GWA (North) Pty Ltd (ACN 144 081 774), a proprietary limited liability company incorporated under the laws of the Commonwealth of Australia.
“GWA (North) Debt”. Indebtedness of GWA (North) in favor of AustralAsia due in the year 2054 in a principal amount not to exceed AUD50,000,000 in the aggregate at any time outstanding or any Indebtedness incurred as a refinancing in respect thereof and any obligations in respect of any guarantee thereof by any Loan Party; provided that with respect to any refinancing of such Indebtedness (and any obligations in respect of any such guarantee thereof) (i) there shall be no increase in the principal amount of Indebtedness thereof and (ii) the maturity of the principal amount of Indebtedness thereof may not be shortened.
“GWALP”. G&W Australia Holdings LP, a limited partnership formed under the laws of Australia.
“GWI”. See preamble.
“GWI Audited Financial Statements”. See §8.4.1(a).
“GWI Historical Financial Statements”. See §8.4.1(a).
“GWI Unaudited Financial Statements”. See §8.4.1(a).
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“Hazardous Substances”. See §8.15(b).
“Hedge Bank”. (a) Any Person that (x) at the time it enters into a Hedging Agreement is a Lender or Agent or an Affiliate of a Lender or Agent, or (y) at any time after it enters into a Hedging Agreement it becomes a Lender or Agent or an Affiliate of a Lender or Agent or (b) with respect to any Hedging Agreement that is in effect on the Restatement Effective Date, any Person that (x) is a Lender or Agent or an Affiliate of a Lender or Agent on the Restatement Effective Date or in connection with the initial syndication of the Loans or (y) is listed on Schedule 1.1(b) and, in the case of this clause (y), any Affiliate of such Person.
“Hedging Agreement”. Any and all rate swap transactions, basis swaps, forward rate transactions, commodity swaps, commodity options, equity or equity index swaps, equity or equity index options, bond options, interest rate options, foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, credit protection transactions, credit swaps, credit default swaps, credit default options, total return swaps, credit spread transactions, forward purchases or sales of a security, commodity or other financial instrument or interest, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing); provided that the term “Hedging Agreement” shall not include any Purchase Contract.
“Honor Date”. See §5.3(a).
“Huron”. Huron Central Railway Inc., a corporation constituted under the laws of Ontario, Canada.
“Identified Contingent Liabilities”. The maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of GWI and its Subsidiaries taken as a whole after giving effect to the transactions occurring on the Restatement Effective Date and contemplated herein (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent also reflected in Stated Liabilities), as identified and explained in terms of their nature and estimated magnitude by authorized officers of GWI.
“Immaterial Foreign Subsidiary”. Any Foreign Subsidiary or Foreign Subsidiaries with respect to which, either individually or collectively, (a) the aggregate book value of such Foreign Subsidiary’s or Foreign Subsidiaries’ assets constitutes less than 5.0% of Consolidated Total Assets, and (b) the aggregate Consolidated EBITDA of such Foreign Subsidiary or Foreign Subsidiaries constitute less than 7.5% of the Consolidated EBITDA of GWI and its Restricted Subsidiaries; provided that a Designated Subsidiary shall not be an Immaterial Foreign Subsidiary.
“Immaterial Restricted Subsidiary”. Any Restricted Subsidiary or Restricted Subsidiaries with respect to which, either individually or collectively, (a) the aggregate book value of such Restricted Subsidiary’s or Restricted Subsidiaries’ assets constitutes less than 5% of Consolidated Total Assets, (b) the aggregate revenues of such Restricted Subsidiary or Restricted Subsidiaries constitute less than 5% of the consolidated revenues of GWI and its Restricted Subsidiaries, and (c) that portion of Consolidated EBITDA attributable to such Restricted Subsidiary or Restricted Subsidiaries, if deducted from the calculation of Consolidated EBITDA, would not result in an Event of Default, in each case, on any applicable date.
“Increase Effective Date”. See §6.18.1.
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“Increase Joinder”. See §6.18.3.
“Incremental Commitments”. Collectively, the Incremental Revolving Loan Commitments and/or the Incremental Term Commitments.
“Incremental Loans”. Collectively, Incremental Revolving Loans and/or the Incremental Term Loans.
“Incremental Revolving Loan Commitment”. See §6.18.1.
“Incremental Revolving Loans”. Any loans made pursuant to any Incremental Revolving Loan Commitments.
“Incremental Term Commitments”. See §6.18.1.
“Incremental Term Lender”. A Lender of Incremental Term Loans.
“Incremental Term Loans”. Any loans made pursuant to any Incremental Term Commitment.
“Indebtedness”. As to any Person and whether recourse is secured by or is otherwise available against all or only a portion of the assets of such Person and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed,
(b) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments,
(c) every reimbursement obligation of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person,
(d) every obligation of such Person issued or assumed as the deferred purchase price of property or services (including securities repurchase agreements but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business which are not more than 90 days overdue or which are being contested in good faith),
(e) every obligation of such Person as an obligor or lessee under any Capitalized Lease,
(f) every obligation of such Person under any Hedging Agreement,
(g) every obligation in respect of Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent that such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor and such terms are enforceable under applicable law, and
(h) every obligation, contingent or otherwise, of such Person guarantying, or having the economic effect of guarantying or otherwise acting as surety for, any obligation of a type described in any of clauses (a) through (g) (the “primary obligation”) of another Person (the “primary obligor”), in any manner, whether directly or indirectly, and including, without limitation, any obligation of such Person (i) to purchase or pay (or advance or supply funds for
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the purchase of) any security for the payment of such primary obligation, (ii) to purchase property, securities or services for the purpose of assuring the payment of such primary obligation, or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such primary obligation. For the avoidance of doubt, (i) Government Grants and (ii) any committed purchase amounts for the acquisition of railroad and railroad related material, equipment or supplies shall not constitute “Indebtedness” hereunder.
The “amount” or “principal amount” of any Indebtedness at any time of determination represented by (w) any Indebtedness, issued at a price that is less than the principal amount at maturity thereof, shall be the amount of the liability in respect thereof determined in accordance with GAAP, (x) any Capitalized Lease shall be the principal component of the aggregate of the rentals obligation under such Capitalized Lease payable over the term thereof that is not subject to termination by the lessee, (y) any Hedging Agreement shall be the maximum amount of any termination or loss payment required to be paid by such Person if such Hedging Agreement were, at the time of determination, to be terminated by reason of any event of default or early termination event thereunder, whether or not such event of default or early termination event has in fact occurred, and (z) any guaranty or other contingent liability referred to in clause (h) shall be an amount equal to the stated or determinable amount of the primary obligation in respect of which such guaranty or other contingent obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. Notwithstanding anything to the contrary herein, “Indebtedness” for purposes of §11.1 only, shall include any Capital Stock or any obligations pursuant to any Capital Stock having debt-like features (such as mandatory cash dividends, mandatory redemption provisions or other provisions which create monetary obligations on such Borrower payable in cash during a period when Loans may be outstanding) in respect of equity of any non-wholly-owned Subsidiary acquired in connection with any Minor Permitted Acquisition, Permitted Acquisition or other Investment permitted under §10.3.
“Indemnified Party”. See §16.13.
“Indemnified Person”. See §18.
“Indemnified Taxes”. Taxes imposed on or with respect to any payment made by or on account of any Obligation of any Loan Party, other than (i) Excluded Taxes and (ii) Other Taxes.
“Indirect Tax”. Any goods and services Tax, consumption Tax, value added Tax or any Tax of a similar nature.
“Instrument of Adherence (Guaranty)”. See §9.14(a).
“Intellectual Property Security Agreement”. The Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement (as each such term is defined in the U.S. Security Agreement and to the extent applicable) (together with each other intellectual property security agreement delivered pursuant to §9.14 or §9.16), in each case as amended, restated, supplemented or otherwise modified from time to time.
“Interest Coverage Ratio”. As of any date of determination, the ratio of (a) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters then most recently ended for which financial statements have been delivered pursuant to §9.4 to (b) Consolidated Total Interest Expense for such period.
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“Interest Payment Date”. (a) As to any Applicable Floating Rate Loan, the last day of the calendar quarter; (b) as to any Applicable Offered Rate Loan in respect of which the Interest Period is (i) 3 months or less, the last day of such Interest Period and (ii) more than 3 months, the date that is 3 months from the first day of such Interest Period and on the last day of the Interest Period; and (c) with respect to any Swingline Loan, the day that such Swingline Loan is required to be repaid.
“Interest Period”. With respect to each Loan (a) initially, the period commencing on the Drawdown Date of such Loan and ending on the last day of one of the periods set forth below, as selected by a Borrower in a Loan Request or resulting from a conversion under §§2.8 or 3.5 (i) for any Applicable Floating Rate Loan, the last day of the calendar quarter; and (ii) for any Applicable Offered Rate Loan, 1, 2, 3 or 6 (or, if agreed to by all Lenders 12) months; and (b) thereafter, each period commencing on the last day of the preceding Interest Period applicable to such Loan and ending on the last day of one of the periods set forth above, as selected by the Applicable Borrower; provided that (i) all of the foregoing provisions relating to Interest Periods are subject to the following: if any Interest Period with respect to an Applicable Offered Rate Loan would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day; if any Interest Period with respect to an Applicable Floating Rate Loan would end on a day that is not a Business Day, that Interest Period shall end on the next succeeding Business Day; if any Borrower shall fail to give notice as provided in §§2.8 or 3.5, such Borrower shall be deemed to have requested a conversion of the affected Applicable Offered Rate Loan or Applicable Floating Rate Loan to a one month Applicable Offered Rate Loan, on the last day of the then current Interest Period with respect thereto; any Interest Period relating to any Applicable Offered Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; any Interest Period that would otherwise extend beyond the Maturity Date shall end on the Maturity Date; and interest shall accrue for the first day of each Interest Period and each day thereafter up to but (provided that interest is timely paid) not including the last day of such Interest Period and (ii) the initial Interest Period with respect to the Loans exchanged pursuant to Amendment No. 3 shall be the Interest Period for the Loans under the Existing Credit Agreement from which such Loans have been exchanged from.
“International Standby Practices”. With respect to any standby Letter of Credit, International Standby Practices (ISP98) as promulgated by the Institute of International Banking Law & Practice, Inc., or any successor code of standby letter of credit practices among banks adopted by the Issuing Lender in the ordinary course of its business as a standby letter of credit issuer and in effect at the time of issuance of such Letter of Credit.
“Investments”. All expenditures made and all liabilities incurred (contingently or otherwise) for the acquisition of stock or Indebtedness of, or for loans, advances, capital contributions or transfers of property to (other than dispositions of property permitted by §10.5.3), or in respect of any guaranties (or other commitments as described under Indebtedness), or obligations of, any Person. In determining the aggregate amount of Investments outstanding at any particular time: (a) the amount of any Investment represented by a guaranty shall be taken at not less than the principal amount of the obligations guaranteed and still outstanding; (b) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (c) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); (d) without duplication there shall be deducted in respect of any Investment any amounts received as cash earnings on such Investment, whether as dividends, interest or otherwise; and (e) there shall not be deducted from the aggregate amount of Investments any decrease in the value thereof.
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“Issuer Document”. With respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Issuing Lender and Applicable Borrower (or any Subsidiary) or in favor of the Issuing Lender and relating to any such Letter of Credit.
“Issuing Lender”. (i) Bank of America (or any subsidiary or Affiliate of Bank of America designated by Bank of America) in its capacity as issuer of Letters of Credit pursuant to §5, (ii) any other Lender that agrees to so act and is appointed by the Borrower with the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) pursuant to §5.6 or (iii) any successor issuer of Letters of Credit hereunder.
“ITA”. The United Kingdom Income Tax Xxx 0000.
“Latest Maturity Date”. At any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Term Loan or any Incremental Term Commitment, in each case as extended in accordance with this Credit Agreement from time to time.
“Laws”. 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.
“Lender Affiliate”. With respect to any Lender, (a) an Affiliate of such Lender or (b) any Approved Fund.
“Lenders”. The Domestic Lenders, the European Lenders, the Canadian Lenders and the UK Lenders party hereto and any other Person who becomes an assignee of any rights and obligations of a Lender pursuant to §20. In addition, unless the context otherwise requires, the term “Lenders” includes the Swingline Lenders, the Issuing Lender, any Extending Lender and any Incremental Term Lender.
“Lending Office”. As to any Lender, initially the office or offices of such Lender designated as such in Schedule II; thereafter, such other office or offices as a Lender may from time to time notify GWI and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
“Letter of Credit”. See §5.1.1(a).
“Letter of Credit Advance”. With respect to each Lender, such Lender’s funding of its participation in any Letter of Credit Borrowing in accordance with its Commitment Percentage.
“Letter of Credit Application”. See §5.1.1(a).
“Letter of Credit Borrowing”. An extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Domestic Revolving Loan, European Loan, Canadian Revolving Loan or UK Revolving Loan.
“Letter of Credit Borrowing Date”. See §5.3(a).
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“Letter of Credit Expiration Date”. The day that is seven days prior to the latest Maturity Date (or, if such day is not a Business Day, the next preceding Business Day) of the applicable Revolving Loan Commitment.
“Letter of Credit Fee”. See §5.10.
“Letter of Credit Obligations”. As of any date, the sum of the Maximum Drawing Amount as of such date and all Unpaid Reimbursement Obligations as of such date. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with §5.8. For all purposes of this Credit Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the International Standby Practices, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Letter of Credit Participation”. See §5.1.4.
“LIBOR Rate”. For any Interest Period with respect to a LIBOR Rate Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:
LIBOR Rate = | LIBOR Base Rate 1.00 – Eurocurrency Reserve Percentage |
Where,
“LIBOR Base Rate” means, for such Interest Period, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”), as published by Bloomberg (or other commercially available source providing quotations of LIBOR as designated by the Administrative Agent from time to time) (the “LIBOR Screen Rate”) 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 “LIBOR Base Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the LIBOR Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America-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.
For any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to (i) LIBOR, at approximately 11:00 a.m., London time determined two Business Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in Same Day Funds in the approximate amount of the Base Rate Loan being made or maintained and with a term equal to one month would be offered by Bank of America-London Branch (or other Bank of America branch or Affiliate) to major banks in the London interbank Eurodollar market at their request at the date and time of determination.
If the LIBOR Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
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“LIBOR Rate Loans”. Loans bearing interest calculated by reference to the LIBOR Rate.
“LIBOR Screen Rate”. See definition of LIBOR Base Rate.
“LIBOR Successor Rate”. See §6.4.
“LIBOR Successor Rate Conforming Changes”. With respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with the Borrower).
“Lien”. Any mortgage, deed of trust, security interest, hypothec, pledge, hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien (statutory, judgment or otherwise), a mandate (“mandaat”/“mandat”) to create a mortgage or pledge over business assets or other security agreement or preferential arrangement of any kind or nature whatsoever (including “voorrecht”/“privilege”, any conditional sale or other title retention agreement, any Capitalized Lease, any Government Grant, or any financing lease involving substantially the same economic effect as any of the foregoing).
“Limited Condition Acquisition”. See §6.18.7.
“Loan Documents”. Collectively, this Credit Agreement, the Collateral Documents, the Notes, the Letter of Credit Applications, the Letters of Credit, the Fee Letter and any Instruments of Adherence (Guaranty) executed in connection herewith, and any amendments to the foregoing including pursuant to Amendment Xx. 0, Xxxxxxxxx Xx. 0 xxx Xxxxxxxxx Xx. 0.
“Loan Party”. Any Borrower or Guarantor.
“Loan Request”. See §2.6(a).
“Loans”. Collectively, the Domestic Revolving Loans, the European Loans, the Domestic Term Loan, the Swingline Loans, the Canadian Revolving Loans, the UK Term Loans, the UK Revolving Loans, the Incremental Term Loans and Incremental Revolving Loans.
“Management Determination”. See §7.1(g).
“Mandatory Cost”. With respect to any period, the percentage rate per annum determined in accordance with Schedule 1.1(c).
“Manufactured (Mobile) Homes”. §8.27(b).
“Material Acquisition”. A Permitted Acquisition with an aggregate Purchase Price greater than $500,000,000.
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“Material Adverse Effect”. With respect to any event or occurrence of whatever nature (including any adverse determination in any litigation, arbitration or governmental investigation or proceeding):
(a) material adverse effect on the business, properties, financial condition, assets, operations or income of the Borrowers and their Restricted Subsidiaries, taken as a whole; or
(b) a material adverse effect on the rights, remedies or benefits available to any Agent or any Lender under any Loan Document.
“Material Foreign Subsidiary”. Each Foreign Subsidiary that is not an Immaterial Foreign Subsidiary.
“Maturity Date”. The date that is the fifth anniversary of the Restatement Effective Date, or such earlier date as the Obligations become due and payable pursuant to the terms of this Credit Agreement.
“Maximum Drawing Amount”. The sum of the maximum aggregate amount that the beneficiaries may at any time draw under outstanding Letters of Credit, as such aggregate amount may be reduced from time to time pursuant to the terms of the Letters of Credit.
“Maximum Incremental Facilities Amount”. See §6.18.1.
“Minimum Extension Condition”. See §6.19(b).
“Minor Permitted Acquisition”. An acquisition or series of related acquisitions by any Borrower or any Restricted Subsidiary of any Borrower (with the proceeds of a capital contribution from such Borrower or otherwise) of any other Person, or of any business, division or operating unit of any other Person (whether by way of merger or a purchase of assets or Capital Stock) for which the Purchase Price is less than $75,000,000.
“Moody’s”. See definition of Cash Equivalents.
“Mortgage”. An agreement, including, but not limited to, a mortgage, deed of trust, debenture, hypothec, deed to secure debt, leasehold mortgage, leasehold deed to secure debt, leasehold deed of trust or any other document, creating and evidencing a Lien on Mortgaged Property, with such schedules and including such provisions as shall be necessary to conform such document to applicable local law or as shall be customary under applicable local law, in each case as the same may be amended, amended and restated, supplemented, assigned or otherwise modified from time to time in form and substance reasonably acceptable to the Administrative Agent.
“Mortgaged Property”. Each real property identified as a Mortgaged Property on Schedule IV attached hereto. For the avoidance of doubt, at no time shall Mortgaged Property include any Buildings or Manufactured (Mobile) Homes.
“Multiemployer Plan”. Any multiemployer plan (as defined in §4001(a)(3) of ERISA) to which GWI or any ERISA Affiliate makes, is obligated to make, or during the preceding five plan years has made or been obligated to make, contributions.
“Multiple Employer Plan”. A Pension Plan which has two or more contributing sponsors (one of which is GWI or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in §4063 of ERISA.
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“Net Assets”. See §7.1(g).
“Net Cash Proceeds”.
(a) With respect to any Disposition by any Loan Party or any of its Restricted Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition (including any cash and Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Disposition, any insurance proceeds or condemnation awards in respect of such Disposition actually received by or paid to or for the account of any Loan Party or any of their Restricted Subsidiaries) over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness that is secured by the asset subject to such Disposition and required to be repaid in connection with such Disposition (other than Indebtedness under the Loan Documents), (B) the out-of-pocket fees, commissions and expenses (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by such Borrower or such Restricted Subsidiary in connection with such Disposition, (C) Taxes (or distributions for Taxes pursuant to §10.4) paid or reasonably estimated to be payable in connection therewith and (D) any reserve for adjustment in respect of (x) the sale price of such asset or assets established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by the Borrowers or any Restricted Subsidiary after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, it being understood that “Net Cash Proceeds” shall include the amount of any reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in this clause (D); provided that, if no Default or Event of Default has occurred and is continuing, on the date of receipt of such proceeds, the Applicable Borrower or any Restricted Subsidiary may state, in a written certificate delivered to the Administrative Agent following receipt of any such proceeds, the Applicable Borrower’s or such Restricted Subsidiary’s intention to use, or to commit to use, any portion of such proceeds, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Applicable Borrower and the Restricted Subsidiaries or to make investments in one or a series of related or unrelated Permitted Acquisitions or Investments permitted by §10.3 or make other Capital Expenditures, in each case, within twelve months of such receipt, and such portion of such proceeds shall not constitute Net Cash Proceeds except to the extent (A) not so used within such twelve-month period or (B) if committed to be used within such twelve-month period, not so used within 18 months of such receipt); provided further that no such net cash proceeds in any calendar year shall constitute Net Cash Proceeds under this clause (a) until the aggregate amount of all such net cash proceeds shall exceed $125,000,000 (and then only with respect to the amount in excess of $125,000,000); provided that (x) if the Total Leverage Ratio (calculated on a pro forma basis after giving effect to such Disposition and the application of any applicable Net Cash Proceeds thereof) at the time of any Disposition is greater than 3.50 to 1.00, then the prepayment of Term Loans pursuant to §4.2(c) shall only be required to the extent necessary to make the Total Leverage Ratio (calculated on a pro forma basis after giving effect to such Disposition and the application of any applicable Net Cash Proceeds thereof) less than or equal to 3.50 to 1.00, (y) if the Total Leverage Ratio (calculated on a pro forma basis after giving effect to such Disposition and the application of any applicable Net Cash Proceeds thereof) at the time of any Disposition is greater than 2.50 to 1.00 but less than or equal to 3.50 to 1.00, then the prepayment of Term Loans pursuant to §4.2(c) shall only be required to the extent necessary to make the Total Leverage Ratio (calculated on a pro forma
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basis after giving effect to such Disposition and the application of any applicable Net Cash Proceeds thereof) less than or equal to the Total Leverage Ratio as of the last day of the immediately preceding Test Period and (z) in any event, no prepayment of Term Loans pursuant to §4.2(c) shall be required if the Total Leverage Ratio (calculated on a pro forma basis after giving effect to such Disposition and the application of any applicable Net Cash Proceeds thereof) at the time of any Disposition is less than or equal to 2.50 to 1.00; and
(b) with respect to the sale or issuance of any equity interest by any Loan Party or any of its Restricted Subsidiaries, or the incurrence or issuance of any Indebtedness by any Loan Party or any of its Restricted Subsidiaries, the excess, if any, of (A) the sum of the cash and Cash Equivalents received in connection with such incurrence, issuance or other obtaining over (B) the investment banking fees, discounts, issuance costs, commissions, costs and other out-of-pocket expenses and other customary expenses, incurred by any Loan Party or such Restricted Subsidiary in connection with such incurrence, issuance or other obtaining.
“New Subsidiary”. See definition of Consolidated EBITDA.
“No Undisclosed Information Representation”. A representation that such Person is not in possession of any material non-public information that has not been disclosed to investors or has not otherwise been disseminated in a manner making it available to investors generally, in each case within the meaning of Regulation FD, prior to such time, with respect to GWI or its Affiliates, or the securities of any of the foregoing.
“Non-Cash Charges”. (a) Any non-cash impairment charge or asset write-off or write-down related to intangible assets (including goodwill), long-lived assets, and investments in debt and equity securities pursuant to GAAP, (b) all non-cash losses from investments recorded using the equity method, (c) all Non-Cash Compensation Expenses, (d) the non-cash impact of purchase accounting, (e) the non-cash impact of accounting changes or restatements, (f) all non-cash expenses in connection with Hedging Agreements incurred in the ordinary course of business and (g) other non-cash charges (provided, in each case, that if any non-cash charges or items that represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period).
“Non-Cash Compensation Expense”. Any non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive-based compensation awards or arrangements.
“Non-Cash Compensation Liabilities”. Any liabilities recorded in connection with stock-based awards, partnership interest-based awards and similar incentive based compensation awards or arrangements.
“Non-Extension Notice Date”. See §5.1.2(b).
“Non-Guarantor Subsidiary”. Each Unrestricted Subsidiary and any Subsidiary that is not a Loan Party.
“Note Record”. The grid attached to a Note, or the continuation of such grid, or any other similar record, including computer records, maintained by any Lender with respect to any Loan referred to in such Note.
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“Notes”. Collectively, the Domestic Notes, the European Notes, the Canadian Revolving Notes and the UK Notes.
“Obligations”. Collectively or individually, as the context requires, the U.S. Obligations and the Foreign Obligations.
“OFAC”. See §8.25.
“OID”. See §6.18.3(v).
“Original Credit Agreement”. See recitals.
“Other Designated Subsidiary Commitments”. The Revolving Credit Commitments of any Other Designated Subsidiary Lenders.
“Other Designated Subsidiary Lenders”. The Designated Subsidiary Lenders with respect to any Designated Subsidiary Commitment created prior to any applicable date of Designation, acting in their role as Lenders of Loans to such applicable Designated Subsidiary and any other Person who becomes an assignee of any rights and obligations of any Other Designated Subsidiary Lender pursuant to §20.
“Other Revolving Loan Commitments”. One or more tranche revolving credit commitments hereunder that result from a Refinancing Amendment.
“Other Revolving Loan Lender”. A Lender of Other Revolving Loans.
“Other Revolving Loans”. One or more tranche of Revolving Loans that result from a Refinancing Amendment.
“Other Term Loan Commitments”. One or more tranche of term loan commitments hereunder that result from a Refinancing Amendment.
“Other Term Loan Lender”. A Lender of Other Term Loans.
“Other Term Loans”. One or more tranche of Term Loans that result from a Refinancing Amendment.
“Other Taxes”. 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 Credit Agreement or any other Loan Document; provided, that Other Taxes in respect of any UK Loan shall not include any stamp duty, registration or similar Taxes payable in respect of an assignment or transfer of any rights of any UK Lender under a UK Loan.
“Outstanding” or “outstanding”. With respect to the Loans, the aggregate unpaid principal thereof as of the date of determination.
“Pari Passu Intercreditor Agreement”. An intercreditor agreement substantially in the form of Exhibit I.
“Participant”. See §20.4(a).
“Participant Register”. See §20.4(b).
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“Participating Member State”. Each state so described in any EMU Legislation.
“Patriot Act”. See §8.25.
“Payment Event of Default”. See §6.10.
“PBGC”. The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor entity or entities having similar responsibilities.
“Pension Plan”. A Plan that is either covered by Title IV of ERISA or is subject to the minimum funding standards under §§412 and 430 of the Code or §302 of ERISA.
“Perfection Certificate Supplement”. A certificate supplement in the form of Exhibit G-2 or any other form approved by the Administrative Agent.
“Perfection Certificates”. Certificates in the form of Exhibit G-1 or any other form approved by the Administrative Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.
“Permitted Acquisition(s)”. See §10.5.2(c).
“Permitted Debt Conditions”. As to any Indebtedness, such applicable Indebtedness (i) is not scheduled to mature prior to the Maturity Date and does not have a shorter Weighted Average Life to Maturity than the Term Loans outstanding on the Restatement Effective Date, (ii) has covenants no more restrictive (taken as a whole) than those set forth in this Credit Agreement as determined in good faith by GWI.
“Permitted Factoring Assets”. Accounts receivable (whether constituting accounts, payment intangibles, other general intangibles, chattel paper or instruments) originated by a Borrower or any Subsidiary thereof in the ordinary course of business from the sale of goods or provision of services, together with any security (including insurance) or guaranties related thereto and the rights to the proceeds thereof.
“Permitted Factoring Transaction”. One or more receivables purchase facilities entered into, on the one hand, by a Borrower and/or one or more subsidiaries, and, on the other hand, a third-party purchaser with respect to Permitted Factoring Assets, which receivables purchase facilities are nonrecourse to any Borrower or any Subsidiary (other than customary limited recourse, indemnity and repurchase obligations typical for transactions of such type).
“Permitted First Lien Indebtedness”. Any Indebtedness in the form of one or more series of senior secured notes of the Loan Parties that (i) is secured by the Collateral on a pari passu basis to the liens securing the Obligations and is not secured by any property or assets of the Loan Parties or any Restricted Subsidiary other than the Collateral, (ii) meets the Permitted Debt Conditions and (iii) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors. The holders of such Indebtedness (or their representative) and the Administrative Agent shall be party to the Pari Passu Intercreditor Agreement.
“Permitted First Priority Refinancing Debt”. Any secured Indebtedness incurred by a Borrower in the form of one or more series of senior secured notes or loans; provided that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations and is not secured by any property or assets of GWI, the Borrowers or any Restricted
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Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness, (iii) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors, (iv) such Indebtedness in the form of notes shall not contain any mandatory prepayment provisions (other than related to customary asset sale and change of control offers or events of default) that could result in prepayments of such notes prior to the Indebtedness being refinanced, (v) the other term and conditions of such Permitted First Priority Refinancing Debt (excluding pricing, interest rate margin, rate floors, discounts, fees and prepayment or redemption provisions) are not materially more favorable (when taken as a whole) to the lenders or investors providing such Permitted First Priority Refinancing Debt than the terms of the Indebtedness being refinanced, (vi) the holders of such Indebtedness (or their representative) and the Administrative Agent shall be party to the Pari Passu Intercreditor Agreement and (vii) such Indebtedness meets the requirements of clause (i) of the definition of “Permitted Debt Conditions”.
“Permitted Liens”. Liens permitted by §10.2.
“Permitted Preferred Stock”. Any Qualified Capital Stock of GWI issued on or after the Restatement Effective Date with an aggregate liquidation preference of not more than $500,000,000 and a dividend rate of not more than 10.0% per annum.
“Permitted Second Lien Indebtedness”. Any Indebtedness of the Loan Parties that (i) is secured by the Collateral on a second priority (or other junior priority) basis to the liens securing the Obligations and is not secured by any property or assets of the Loan Parties or any Restricted Subsidiary other than the Collateral, (ii) meets the Permitted Debt Conditions and (iii) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors. The holders of such Indebtedness (or their representative) and the Administrative Agent shall be party to the Second Lien Intercreditor Agreement.
“Permitted Second Priority Refinancing Debt”. Any secured Indebtedness incurred by a Borrower in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans; provided that (i) such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the liens securing the Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt and is not secured by any property or assets of GWI, the Borrowers or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness, (iii) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors, (iv) such Indebtedness in the form of notes shall not contain any mandatory prepayment provisions (other than related to customary asset sale and change of control offers or events of default) that could result in prepayments of such notes prior to the Indebtedness being refinanced, (v) the other term and conditions of such Permitted Second Priority Refinancing Debt (excluding pricing, interest rate margin, rate floors, discounts, fees and prepayment or redemption provisions) are not materially more favorable (when taken as a whole) to the lenders or investors providing such Permitted Second Priority Refinancing Debt than the terms of the Indebtedness being refinanced, (vi) the holders of such Indebtedness (or their representative) and the Administrative Agent shall be party to the Second Lien Intercreditor Agreement and (vii) such Indebtedness meets the requirements of clause (i) of the definition of “Permitted Debt Conditions”.
“Permitted Unsecured Indebtedness”. Any unsecured Indebtedness of the Loan Parties that (i) meets the Permitted Debt Conditions and (ii) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors.
“Permitted Unsecured Refinancing Debt”. Any unsecured Indebtedness incurred by a Borrower in the form of one or more series of senior unsecured notes or loans; provided that (i) such Indebtedness
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constitutes Credit Agreement Refinancing Indebtedness, (ii) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors, (iii) such Indebtedness in the form of notes shall not contain any mandatory prepayment provisions (other than related to customary asset sale and change of control offers or events of default) that could result in prepayments of such notes prior to the Indebtedness being refinanced, (iv) the other term and conditions of such Permitted Unsecured Refinancing Debt (excluding pricing, interest rate margin, rate floors, discounts, fees and prepayment or redemption provisions) are not materially more favorable (when taken as a whole) to the lenders or investors providing such Permitted Unsecured Refinancing Debt than the terms of the Indebtedness being refinanced and (v) such Indebtedness meets the requirements of clause (i) of the definition of “Permitted Debt Conditions”.
“Person”. Any individual, corporation, limited liability company, partnership, limited liability partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof.
“Plan”. An employee benefit plan within the meaning of §3(3) of ERISA (excluding a Multiemployer Plan), maintained for employees of GWI or any ERISA Affiliate or to which GWI or any ERISA Affiliate is required to contribute on behalf of any of its employees or has any liability, actual or contingent.
“Platform”. See §9.4.
“PPSA”. In relation to the Canadian Borrower or any Canadian Guarantor or if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the laws of Canada or any province or territory thereof, the Personal Property Security Act (Ontario), provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by a Personal Property Security Act as in effect in a province or territory in Canada other than the Province of Ontario or the Province of Québec, “PPSA” means the Personal Property Security Act as in effect from time to time in such other province or territory, as applicable, for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“Preferred Equity”. As applied to the Capital Stock of any Person, means Capital Stock of such Person (other than common Capital Stock of such Person) of any class or classes (however designed) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Capital Stock of any other class of such Person.
“primary obligation”. See definition of “Indebtedness”.
“primary obligor”. See definition of “Indebtedness”.
“Primary Syndication”. The initial placement by Bank of America of participations in the Facilities, such placement occurring prior to the expiration of 60 Business Days after the Restatement Effective Date.
“Protesting Lender”. See §6.23(b).
“PTE”. A prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
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“Public Lender”. See §9.4.
“Purchase Price”. With respect to any Permitted Acquisition, all consideration (other than consideration in the form of Capital Stock of any Borrower or any Restricted Subsidiary) payable by any of the Borrowers or any of their Restricted Subsidiaries in connection with such Permitted Acquisition, including, without limitation, cash payments, the principal amount of any promissory notes issued by any of the Borrowers or any of their Restricted Subsidiaries, any amounts payable by any of the Borrowers or any of their Restricted Subsidiaries in consideration for any non-compete covenant, deferred purchase price, earn-out or similar payment and the amount of any Indebtedness assumed by any of the Borrowers or any of their Restricted Subsidiaries.
“Purchasing Lender”. See §31(c).
“Qualified Capital Stock”. Any Preferred Equity of GWI so long as the terms of any such Preferred Equity (and the terms of any Capital Stock into which such Preferred Equity is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof) (x) do not contain any mandatory put, redemption, repayment, sinking fund or other similar provision prior to the Maturity Date other than as a result of customary asset sale and change of control offers and (y) contain covenants that are not, taken as a whole, materially more restrictive than the covenants of this Agreement.
“Qualified ECP Guarantor”. In respect of any Swap Obligation, each Guarantor that, at the time the relevant Guaranty (or grant of the relevant security interest, as applicable) becomes or would become effective with respect to such Swap Obligation, has total assets exceeding $10,000,000 or otherwise constitutes an “eligible contract participant” under the Commodity Exchange Act and which may cause another person to qualify as an “eligible contract participant” with respect to such Swap Obligation at such time by entering into a keepwell pursuant to § 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualifying Lender” With respect to the UK Borrower, (i) a UK Lender which is beneficially entitled to interest payable to that Lender in respect of a UK Loan and is: (A) a Lender: (1) which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a UK Loan and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or (2)in respect of an advance made under a UK Loan by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or is a bank that would be within the charge to corporation tax as respects the payments of interest a part from section 18A of the CTA; or (B) a Lender which is: (1) a company resident in the United Kingdom for United Kingdom tax purposes; (2) a partnership each member of which is: (a) a company so resident in the United Kingdom; or (b) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; (3) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or (C) a Treaty Lender; or (ii) a UK Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a UK Loan.
“Railcare”. Railcare Inc., a corporation constituted under the laws of Ontario, Canada.
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“RailInvest”. RailInvest Holding Company Limited, a company incorporated and registered in England and Wales with company number 6522978 whose registered office is at 3rd Floor, The Podium, One Xxxxxxxxx Xxxxxx, Xxxxxx XX0 0XX.
“Railtex”. Railtex Canada, Inc., a corporation constituted under the laws of Ontario, Canada.
“Rate Adjustment Period”. See definition of “Applicable Margin”.
“RCRA”. See §8.15(a).
“Real Estate”. All real property at any time owned, leased (as lessee or sublessee) or otherwise held by any of the Borrowers or any of their Restricted Subsidiaries.
“Reallocation”. A transfer by the Applicable Borrower of a portion of the Aggregate Domestic Revolving Loan Commitments or all or a portion of the Aggregate Canadian Revolving Loan Commitments or all or a portion of the Aggregate European Commitments or all or a portion of the Aggregate UK Revolving Loan Commitments or all or a portion of any Aggregate Designated Subsidiary Commitments in accordance with §2.10.
“receivables”. See §10.5.3.
“Recording Tax States”. Alabama, Florida, Kansas, Maryland, Minnesota, New York, Virginia and the District of Columbia.
“Refinanced Debt”. See definition of “Credit Agreement Refinancing Indebtedness”.
“Refinancing Amendment”. An amendment to this Credit Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrowers executed by (a) each of the Borrowers, (b) the Administrative Agent, (c) each Other Term Loan Lender and Other Revolving Loan Lender, as applicable, and (d) each then existing Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with §6.20.
“Reimbursement Obligation”. Each Borrower’s obligation to reimburse the Issuing Lender and the Applicable Lenders on account of any drawing under any Letter of Credit as provided in §5.1.4.
“Related Parties”. With respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
“Released Foreign Guarantors”. See §16.11.
“Released Foreign Guarantor Collateral”. See §16.11.
“Replacement Lender”. See §6.11.
“Reportable Event”. Any of the events set forth in §4043(c) of ERISA or the regulations thereunder, other than events for which the 30-day notice period has been waived.
“Required Canadian Lenders”. As of any date, any two or more Canadian Lenders holding in the aggregate more than fifty percent (50%) of the outstanding principal amount of the Aggregate Canadian Revolving Loan Commitments or, if the commitment of each Canadian Lender to make Canadian Revolving Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of Canadian Lenders holding in the aggregate more than
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50% of the Total Canadian Revolver Exposure (with the aggregate amount of each Canadian Lender’s risk participation and funded participation in Letter of Credit Obligations and Swingline Loans, as applicable, being deemed “held” by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Aggregate Canadian Revolving Loan Commitments held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Canadian Lenders.
“Required Designated Subsidiary Lenders”. As of any date, with respect to any applicable Designated Subsidiary any two or more Designated Subsidiary Lenders holding in the aggregate more than fifty percent (50%) of the outstanding principal amount of the Designated Subsidiary Term Loan and the Aggregate Designated Subsidiary Commitments or, if the commitment of each applicable Designated Subsidiary Lender to make Designated Subsidiary Revolving Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of Designated Subsidiary Lenders with respect to such Designated Subsidiary holding in the aggregate more than 50% of the principal amount of the Designated Subsidiary Term Loans outstanding and the Total Designated Subsidiary Revolver Exposure (with the aggregate amount of each Designated Subsidiary Lender’s risk participation and funded participation in Letter of Credit Obligations and Swingline Loans, as applicable, being deemed “held” by such Lender for purposes of this definition) with respect to such Designated Subsidiary; provided that the Commitment of, and the portion of the Aggregate Designated Subsidiary Commitments held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Designated Subsidiary Lenders with respect to such Designated Subsidiary.
“Required Domestic Lenders”. As of any date, any two or more Domestic Lenders holding in the aggregate more than fifty percent (50%) of the outstanding principal amount of the Domestic Term Loan and the Aggregate Domestic Revolving Loan Commitments or, if the commitment of each Domestic Lender to make Domestic Revolving Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of Domestic Lenders holding in the aggregate more than 50% of the principal amount of the Domestic Term Loan outstanding and the Total Domestic Revolver Exposure (with the aggregate amount of each Domestic Lender’s risk participation and funded participation in Letter of Credit Obligations and Swingline Loans, as applicable, being deemed “held” by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Aggregate Domestic Revolving Loan Commitments held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Domestic Lenders.
“Required European Lenders”. As of any date, any two or more European Lenders holding more than fifty percent (50%) of the Aggregate European Commitments or, if the commitment of each European Lender to make European Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of European Lenders holding in the aggregate more than 50% of the Total European Exposure (with the aggregate amount of each European Lender’s risk participation and funded participation in Letter of Credit Obligations and Swingline Loans, as applicable, being deemed “held” by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Aggregate European Commitments held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required European Lenders.
“Required Guarantor Jurisdictions”. (i) The United States, any state thereof and the District of Columbia, (ii) Canada and any province or territory thereof, (iii) England and Wales and (iv) any other jurisdiction as may be agreed to by GWI and the Administrative Agent from time to time.
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“Required Lenders”. As of any date, any two or more Lenders holding in the aggregate more than fifty percent (50%) of the outstanding principal amounts of the Term Loans and the Total Commitments or, if the commitment of each Lender to make Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of Lenders holding in the aggregate more than 50% of the Total Exposure (with the aggregate amount of each Lender’s risk participation and funded participation in Letter of Credit Obligations and Swingline Loans, as applicable, being deemed “held” by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Total Commitments held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required UK Lenders”. As of any date, any two or more UK Lenders holding in the aggregate more than fifty percent (50%) of the outstanding principal amount of the UK Term Loan and the Aggregate UK Revolving Loan Commitments or, if the commitment of each UK Lender to make UK Revolving Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of UK Lenders holding in the aggregate more than 50% of the principal amount of the UK Term Loan outstanding and the Total UK Revolver Exposure (with the aggregate amount of each UK Lender’s risk participation and funded participation in Letter of Credit Obligations and Swingline Loans, as applicable, being deemed “held” by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Aggregate UK Revolving Loan Commitments held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required UK Lenders.
“Restatement Effective Date”. June 5, 2018.
“Restricted Payments”. In relation to the Borrowers and their Restricted Subsidiaries, any (a) Distribution or (b) derivatives or other transactions with any financial institution, commodities or stock exchange or clearinghouse (a “Derivatives Counterparty”) obligating the Borrowers or any Restricted Subsidiary to make payments to such Derivatives Counterparty as a result of any change in market value of any Capital Stock of the Borrowers or such Restricted Subsidiary.
“Restricted Subsidiaries”. Any Subsidiary which is not an Unrestricted Subsidiary. The Borrowers shall not have the right to change the status of an Unrestricted Subsidiary to a Restricted Subsidiary unless (a) such Unrestricted Subsidiary becomes a Guarantor hereunder or (b) such Unrestricted Subsidiary would fit within the exception set forth in the last sentence of §9.14(a). The Borrowers shall not have the right to change the status of a Restricted Subsidiary to an Unrestricted Subsidiary without the consent of the Required Lenders.
“Revaluation Date”. (a) With respect to any Revolving Loan, each of the following: (i) each date of a borrowing of an Applicable Offered Rate Loan denominated in an Alternative Currency, (ii) each date of a continuation of an Applicable Offered Rate Loan denominated in an Alternative Currency pursuant to §2.8.2, and (iii) such additional dates as the Applicable Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the Issuing Lender under any Letter of Credit denominated in an Alternative Currency, and (iv) such additional dates as the Applicable Agent or the Issuing Lender shall determine or the Required Lenders shall require.
“Revolving Lender”. At any time, any Lender that has a Revolving Loan Commitment at such time.
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“Revolving Loan Commitments”. Domestic Revolving Loan Commitments, Canadian Revolving Loan Commitments, European Commitments, UK Revolving Loan Commitments, Incremental Revolving Loan Commitments, if any, and Extended Revolving Loan Commitments, if any.
“Revolving Loan Facility”. At any time, the aggregate amount of the Revolving Lenders’ Revolving Loan Commitments at such time.
“Revolving Loans”. Domestic Revolving Loans, Canadian Revolving Loans, European Loans and UK Revolving Loans.
“RP”. See preamble.
“RPMRR”. The Register of Personal and Movable Real Rights (Quebec).
“S&P”. See definition of Cash Equivalents.
“Same Day Funds”. With respect to disbursement and payments (a) in Dollars, immediately available funds, and (b) in Canadian Dollars or Euro, same day or other funds as may be determined by the Applicable Agent or the Issuing Lender, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in Canadian Dollars or Euro.
“Scheduled Unavailability Date”. See §3.4(e)(ii).
“Second Lien Intercreditor Agreement”. An intercreditor agreement substantially in the form of Exhibit J.
“Secured Cash Management Agreement”. Any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank.
“Secured Hedging Agreement”. Any Hedging Agreement that is entered into by and between any Loan Party and any Hedge Bank.
“Secured Parties”. Collectively, the Agents, the Lenders, the Issuing Lenders, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to §16.1, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.
“Security Agreements”. Collectively, the U.S. Security Agreement, Canadian Security Agreement, the UK Pledge Agreements and the Dutch Security Agreements.
“September 2015 Share Repurchase Program”. The authorization by the Board of Directors of GWI on September 29, 2015 to repurchase up to $300,000,000 of GWI’s Class A Common Stock.
“Senior Managing Agents”. See preamble.
“Senior Secured Leverage Ratio”. For any Test Period, the ratio of (a) Consolidated Funded Debt that is secured by a Lien minus, if the specified Senior Secured Leverage Ratio level against which the Senior Secured Leverage Ratio is being tested is 3.75 to 1.00 or less, cash and Cash Equivalents (in each case, free and clear of all liens, other than Liens permitted pursuant to §10.2), excluding cash and Cash Equivalents that are listed as “restricted” on the consolidated balance sheet of GWI and its Restricted Subsidiaries to (b) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters then most recently ended for which financial statements have been delivered pursuant to §9.4.
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“SPC”. See §20.7.
“Specified Collateral Jurisdictions”. (i) Each jurisdiction of organization of a Borrower and (ii) the Required Guarantor Jurisdictions.
“Specified Guarantor”. Any Guarantor that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to §7.8).
“Specified Representations”. The representations set forth in §§8.1.2, 8.5.2, 8.1.3, 8.11, 8.14 (the fourth sentence only), 8.25 and 8.27.
“Specified Voluntary Prepayment”. Any prepayment of Term Loans (and, to the extent the Revolving Loan Commitments or Incremental Revolving Loan Commitments are reduced in a corresponding amount pursuant to §4.3, Revolving Loans or Incremental Revolving Loans) made pursuant to §20.8.
“Spot Rate”. For a currency, the rate determined by the Applicable Agent or the Issuing Lender, as applicable, as conclusively ascertained absent manifest error 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. (New York time) on the date three Business Days prior to the date as of which the foreign exchange computation is made; provided that the Applicable Agent or the Issuing Lender may obtain such spot rate from another financial institution designated by the Applicable Agent or the Issuing Lender if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.
“Stated Liabilities”. The recorded liabilities (including contingent or subordinated liabilities that would be recorded in accordance with GAAP) of GWI and its Subsidiaries taken as a whole, as of the Restatement Effective Date after giving effect to the consummation of the transactions contemplated herein, determined in accordance with GAAP consistently applied.
“STB”. The Surface Transportation Board or any governmental authority(ies) which succeeds to the function or duties of the Surface Transportation Board or any portion thereof.
“Subsidiary”. Any corporation, association, trust, or other business entity of which the designated parent shall at any time own directly or indirectly through a subsidiary or subsidiaries at least a majority (by number of votes) of the outstanding Voting Stock.
“Swap”. Any agreement, contract, or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Obligation”. With respect to any Person, any obligation to pay or perform under any Swap.
“Swingline Expiry Date”. The date which is five (5) Business Days prior to the Maturity Date.
“Swingline Exposure”. At any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Commitment Percentage of the total Swingline Exposure at such time.
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“Swingline Lenders”. The Domestic Swingline Lender, the European Swingline Lender, the Canadian Swingline Lender and the UK Swingline Lender.
“Swingline Loan”. Any Domestic Swingline Loan, Canadian Swingline Loan, European Swingline Loan or UK Swingline Loan, as the context requires.
“Swingline Loan Request”. See §2.7.2.
“TARGET Day”. Any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Tax Confirmation”. A confirmation by a Lender that the Person beneficially entitled to interest payable to that Lender in respect of an advance under a UK Loan is either: (i) a company resident in the United Kingdom for United Kingdom tax purposes; (ii) a partnership each member of which is: (A) a company so resident in the United Kingdom; or (B) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or (ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.
“Tax Deduction”. A deduction or withholding required by any taxing authority of the United Kingdom for or on account of Tax from a payment under a UK Loan but excluding any such deduction or withholding pursuant to FATCA.
“Taxes”. Any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Lender”. At any time, any Lender that holds Term Loans at such time.
“Term Loans”. Collectively, the Domestic Term Loans, the UK Term Loans and the Incremental Term Loans, if any.
“Test Period”. Each consecutive four fiscal quarter period.
“Total Canadian Revolver Exposure”. At any time, the Dollar Equivalent of the sum of the outstanding Canadian Revolving Loans and the Canadian Swingline Loans.
“Total Designated Subsidiary Exposure”. At any time, the Dollar Equivalent of the sum of the outstanding Designated Subsidiary Revolving Loans.
“Total Commitment”. The sum of the Aggregate Domestic Revolving Loan Commitments, the Aggregate Canadian Revolving Loan Commitments, the Aggregate European Commitments, the Aggregate UK Revolving Loan Commitments and the Aggregate Designated Subsidiary Commitments, as in effect from time to time.
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“Total Domestic Revolver Exposure”. At any time, the sum of the outstanding Domestic Revolving Loans, the Letter of Credit Obligations and the Domestic Swingline Loans.
“Total European Exposure”. At any time, the Dollar Equivalent of the sum of the outstanding European Loans and the European Swingline Loans.
“Total Exposure”. At any time, the sum of the Total Domestic Revolver Exposure, the Total European Exposure, the Total Canadian Revolver Exposure and the Dollar Equivalent of the outstanding principal amount of the Term Loans.
“Total Leverage Ratio”. As of any date of determination, the ratio of (a) Consolidated Funded Debt on such date minus (other than for the purpose of the definition of Applicable Margin), specified Total Leverage Ratio level against which the Total Leverage Ratio is being tested is 3.75 to 1.00 or less, cash and Cash Equivalents (in each case, free and clear of all liens, other than Liens permitted pursuant to §10.2), excluding cash and Cash Equivalents that are listed as “restricted” on the consolidated balance sheet of GWI and its Restricted Subsidiaries to (b) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters then most recently ended for which financial statements have been delivered pursuant to §9.4.
“Total UK Revolver Exposure”. At any time, the Dollar Equivalent of the sum of the outstanding UK Revolving Loans and the UK Swingline Loans.
“Treaty”. See definition of “Treaty State”.
“Treaty Lender”. A Lender which: (i) is treated as a resident of a Treaty State for the purposes of the Treaty; (ii) does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the UK Loan is effectively connected; and (iii) meets all other considerations in the Treaty for full exemption from Tax imposed by the jurisdiction of incorporation of the UK Borrower on interest except that for this purpose it shall be assumed that the following are satisfied: (A) any condition which relates (expressly or by implication) to there not being a special relationship between the UK Borrower and a Lender or between both of them and another Person, or to the amounts or terms of any UK Loan or the Loan Documents or to any other matter that is outside the exclusive control of that Lender; and (B) any necessary procedural formalities.
“Treaty State”. A jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.
“Type”. (a) As to any Domestic Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan, (b) as to any Canadian Revolving Loan, its nature as a Canadian Base Rate Loan or an Applicable Offered Rate Loan or (c) as to any European Loan, its nature as an Applicable Offered Rate Loan.
“UCC”. The Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
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“UK Agent”. With respect to local funding procedures described herein, Bank of America in its capacity as UK Agent under any of the Loan Documents, and with respect to any other provisions set forth herein, Bank of America, and in each case, any successor UK Agent.
“UK Agent’s Office”. With respect to GBP, Bank of America’s address and, as appropriate, account as set forth on Schedule 21 (as may be updated from time to time with notice to the UK Borrower) with respect to such currency, or such other address or account with respect to such currency as the UK Agent may from time to time notify the UK Borrower and the Lenders, which office may include any Affiliate of the UK Agent or any domestic or foreign branch of the UK Agent or such Affiliate. Unless the context otherwise requires each reference to the UK Agent shall include its applicable UK Agent’s Office.
“UK Borrower”. See preamble.
“UK Guarantors”. The Subsidiaries of GWI listed on Schedule I as “UK Guarantors” and any other Restricted Subsidiary organized under the laws of England and Wales that has executed an Instrument of Adherence (Guaranty) in accordance with §9.14.
“UK Lenders”. The Lenders listed on Schedule II, acting in their role as lenders of the UK Loans and any other Person who becomes an assignee of any rights and obligations of a UK Lender pursuant to §20.
“UK Loan Parties”. The UK Borrower and the UK Guarantors.
“UK Loans”. Collectively, the UK Term Loans and the UK Revolving Loans.
“UK Non-Bank Lender”. (i) Where a Lender becomes a Lender in respect of a UK Loan on or before the Restatement Effective Date, a Lender listed on schedule §6.12(g) as being a UK Non-Bank Lender; and (ii) where a Lender becomes a Lender in respect of a UK Loan after the Restatement Effective Date, a Lender which gives a Tax Confirmation on the same day that it executes the Assignment and Assumption on becoming a party.
“UK Notes”. Collectively, the UK Term Notes and the UK Revolving Notes.
“UK Obligations”. All indebtedness, obligations and liabilities of the UK Borrower to the UK Lenders, the UK Swingline Lender, the Issuing Lender, any Hedge Bank and the Administrative Agent, individually or collectively at any time existing (a) under or in respect of or in connection with any of the UK Notes, Letters of Credit or Letter of Credit Applications in respect of the UK Borrower, or UK Loans or UK Swingline Loans made, or Reimbursement Obligations incurred and including any interest thereon, UK Revolving Loan Commitment Fees or other fees or expenses in respect thereof, (b) under any Hedging Agreement between the UK Borrower and any Hedge Bank, and (c) under the Loan Documents.
“UK Overnight Rate”. For any day, the rate of interest per annum equal to the higher of (i) the rate of interest per annum at which overnight deposits in GBP, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by Bank of America-London Branch to major banks in the local market or other applicable offshore interbank market, and (ii) the cost of funds to Bank of America-London Branch with respect to such amount for such day, expressed as a rate of interest per annum.
“UK Overnight Rate Loan”. A UK Loan that bears interest at the UK Overnight Rate.
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“UK Pension Scheme”. The Freightliners Share Cost Section of the Railways Pension Scheme.
“UK Pension Scheme Contribution Notice”. A contribution notice issued by the UK Pensions Regulator under section 38 or section 47 of the Pensions Xxx 0000 of the United Kingdom.
“UK Pension Scheme Financial Support Direction”. A financial support direction issued by the Pensions Regulator under section 43 of the Pensions Xxx 0000.
“UK Pensions Regulator”. The body corporate called the Pensions Regulator established under Part I of the Pensions Xxx 0000 of the United Kingdom.
“UK Pledge Agreements”. Collectively, each share pledge agreement governed by the laws of England and Wales, in form reasonably satisfactory to the Administrative Agent (together with any supplements or amendments thereto).
“UK Register”. See §20.3(e).
“UK Revolving Loan Commitment”. As to each UK Lender, its obligation to make UK Revolving Loans or to participate in UK Swingline Loans to the UK Borrower pursuant to §2.1 in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such UK Lender’s name on Schedule II, as such Schedule may be updated from time to time pursuant to §§2.10. 6.23(a) or 20, or in the Assignment and Assumption pursuant to which a UK Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Credit Agreement.
“UK Revolving Loan Commitment Fee”. See §2.2(e).
“UK Revolving Loans”. The revolving credit loans made or to be made by the UK Lenders to the UK Borrower pursuant to §2.1.
“UK Revolving Notes”. See §2.4.
“UK Swingline Lender”. Bank of America Xxxxxxx Xxxxx International Limited in its capacity as lender of UK Swingline Loans hereunder.
“UK Swingline Loan”. Any loan made by the UK Swingline Lender to the UK Borrower pursuant to §2.7.1.
“UK Swingline Sublimit”. $20,000,000. The UK Swingline Sublimit is part of, and not in addition to, the Aggregate UK Revolving Loan Commitments.
“UK Term Loans”. See §3.1(c). For the avoidance of doubt, the aggregate amount of the UK Term Loans on the Business Day following the Restatement Effective Date is £272,932,331.00.
“UK Term Notes”. See §3.2(d).
“Unpaid Reimbursement Obligation”. Any Reimbursement Obligation for which GWI does not reimburse the Issuing Lender and the Applicable Lenders on the date specified in, and in accordance with, §5.3.
“Unrestricted Subsidiaries”. The Subsidiaries of the Borrowers as reflected in Schedule 8.16(a). The Borrowers shall not have the right to change the status of an Unrestricted Subsidiary to a Restricted
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Subsidiary unless such Subsidiary (a) is a U.S., Canadian, European or UK Subsidiary of a Borrower or Restricted Subsidiary and (b)(i) shall become a Guarantor or (ii) fits within the exception set forth in the second to last sentence of §9.14(a).
“U.S. Collateral”. Collectively, all of the property pledged or granted as collateral pursuant to the U.S. Security Agreement, the Mortgaged Property of the U.S. Loan Parties and all other property of whatever kind and nature subject or purported to be subject from time to time to a Lien under the U.S. Security Agreement or any other Collateral Document governed by the laws of a State of the United States of America.
“U.S. Guaranteed Obligations”. See §7.1(a).
“U.S. Guarantors”. See preamble.
“U.S. Loan Party”. Collectively, the Domestic Borrowers and the U.S. Guarantors.
“U.S. Obligations”. All indebtedness, obligations (including the Designated Domestic Subsidiary Obligations) and liabilities of any U.S. Loan Party to the Domestic Lenders (including the Domestic Swingline Lender and the Issuing Lender) and the Administrative Agent individually or collectively at any time existing and to any Hedge Bank and Cash Management Bank (a) under or in respect of or in connection with any of the Domestic Notes, Letters of Credit or Letter of Credit Applications in respect of the Domestic Borrowers, or Domestic Loans or Domestic Swingline Loans made, or Reimbursement Obligations incurred and including any interest thereon, Domestic Revolving Loan Commitment Fees or other fees or expenses in respect thereof, (b) under any Secured Hedging Agreement between any U.S. Loan Party and any Hedge Bank, (c) under the Loan Documents and (d) in respect of any Secured Cash Management Agreement between a Cash Management Bank as counterparty and any U.S. Loan Party. U.S. Obligations shall in no event include any Excluded Swap Obligations.
“U.S. Security Agreement”. The security agreement, in substantially the form of Exhibit H-1 (together with each other security agreement and security agreement supplement delivered pursuant to §§9.14 or 9.16).
“U.S. Tax Compliance Certificate”. See §6.12(e)(ii)(B)(III).
“Voting Stock”. Stock or similar interests, of any class or classes (however designated), the holders of which are at the time entitled, as such holders, to vote for the election of a majority of the directors (or persons performing similar functions) of the corporation, association, trust or other business entity involved, whether or not the right so to vote exists by reason of the happening of a contingency.
“Weighted Average Life to Maturity”. When applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Western Labrador”. Western Labrador Rail Services Inc., a corporation constituted under the laws of Newfoundland and Labrador, Canada.
“Western Labrador (2013)”. Western Labrador Railway (2013) Inc., a corporation constituted under the laws of Newfoundland and Labrador, Canada.
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“Will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature”. For the period from the Restatement Effective Date through the Maturity Date, GWI and its Subsidiaries taken as a whole will have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of Identified Contingent Liabilities) otherwise become due and payable, in light of business conducted or anticipated to be conducted by the Loan Parties as reflected in the projected financial statements and in light of the anticipated credit capacity.
“Write-Down and Conversion Powers”. With respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.2 Rules of Interpretation.
(a) A reference to any document or agreement shall include such document or agreement as amended, modified or supplemented from time to time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the singular.
(c) A reference to any law includes any amendment or modification to such law.
(d) A reference to any Person includes its permitted successors and permitted assigns.
(e) The words “include”, “includes” and “including” are not limiting.
(f) All terms not specifically defined herein or by generally accepted accounting principles, which terms are defined in the UCC as in effect in the State of New York, have the meanings assigned to them therein, with the term “instrument” being that defined under Article 9 of the UCC.
(g) Reference to a particular “§” refers to that section of this Credit Agreement unless otherwise indicated.
(h) The words “herein”, “hereof”, “hereunder” and words of like import shall refer to this Credit Agreement as a whole and not to any particular section or subdivision of this Credit Agreement.
(i) Unless otherwise expressly indicated, in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”, the words “to” and “until” each mean “to but excluding”, and the word “through” means “to and including”.
(j) Where it relates to a Dutch entity, a reference to:
(i) the words “authorized by all necessary corporate or other proceedings” where applicable, includes:
(A) any action required to comply with the Dutch Works Councils Act of the Netherlands (Wet op de ondernemingsraden); and
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(B) obtaining an unconditional positive advice (advies) from any competent works council(s);
(ii) a liquidation, insolvency or reorganisation includes a Dutch entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden);
(iii) a moratorium includes surseance van betaling and granted a moratorium includes surseance verleend;
(iv) insolvency includes a bankruptcy, moratorium and emergency regulation (noodregeling);
(v) a trustee includes a curator;
(vi) a custodian includes a bewindvoerder;
(vii) an attachment includes a beslag; and
(viii) a subsidiary includes a dochtermaatschappij as defined in Article 2:24a of the Dutch Civil Code.
(k) A “security interest” includes, in respect of a European Borrower or in connection with any security in the Netherlands, a retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht) a right of retention (recht van retentie), a right to reclaim goods (recht van reclame) and in general any right in rem (beperkt recht) created for the purpose of granting security (goederenrechtelijke zekerheid).
(l) This Credit Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are, however, cumulative and are to be performed in accordance with the terms thereof.
(m) This Credit Agreement and the other Loan Documents are the result of negotiation among, and have been reviewed by counsel to, among others, the Administrative Agent and the Borrowers and are the product of discussions and negotiations among all parties. Accordingly, this Credit Agreement and the other Loan Documents are not intended to be construed against any party merely on account of such party’s involvement in the preparation of such documents.
(n) [Reserved].
(o) For purposes of any assets, liabilities or entities located in the Province of Québec and for all other purposes pursuant to which the interpretation or construction of this Credit Agreement may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (i) “personal property” shall include “movable property”, (ii) “real property” or “real estate” shall include “immovable property”, (iii) “tangible property” or “tangible assets” shall include “corporeal property”, (iv) “intangible property” or “intangible assets” shall include “incorporeal property”, (v) “security interest”, “mortgage” and “lien” shall include a “hypothec”, “right of retention”, “prior claim” and a resolutory clause, (vi) all references to filing, perfection, priority, remedies, registering or recording under the UCC or a PPSA shall include publication under the Civil Code of Québec, (vii) all references to “perfection” or of a “perfected” lien or security interest shall include a reference to an “opposable” or “set up” lien or security interest as against third parties, (viii) any “right of offset”, “right of set-off” or similar expression shall include a “right of compensation”, (ix) “goods” shall include “corporeal movable
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property” other than chattel paper, documents of title, instruments, money and securities, (x) an “agent” shall include a “mandatary”, (xi) “construction liens” shall include “legal hypothecs”, (xii) “joint and several” shall include “solidary”, (xiii) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (xiv) “beneficial ownership” shall include “ownership on behalf of another as mandatary”, (xv) “easement” shall include “servitude”, (xvi) “priority” shall include “prior claim”, (xvii) “survey” shall include “certificate of location and plan”, (xviii) “state” shall include “province”, (xix) “fee simple title” shall include “absolute ownership”, (xx) “accounts” shall include “claims” and (xxi) “deposit account” or “bank account” shall include a “financial account” (as defined in the Civil Code of Quebec) maintained by a bank. The parties hereto confirm that it is their wish that this Credit Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement.
(p) With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document, any reference to “Bank of America Xxxxxxx Xxxxx International Limited” is a reference to its successor in title Bank of America Xxxxxxx Xxxxx International Designated Activity Company (including, without limitation, its branches) pursuant to and with effect from the merger between Bank of America Xxxxxxx Xxxxx International Limited and Bank of America Xxxxxxx Xxxxx International Designated Activity Company that takes effect in accordance with Chapter II, Title II of Directive (EU) 2017/1132 (which repeals and codifies the Cross-Border Mergers Directive (2005/56/EC)) as implemented in the United Kingdom and Ireland. Notwithstanding anything to the contrary in any Loan Document, a transfer of rights and obligations from Bank of America Xxxxxxx Xxxxx International Limited to Bank of America Xxxxxxx Xxxxx International Designated Activity Company pursuant to such merger shall be permitted.
1.3 Accounting Terms.
(a) Accounting terms not otherwise defined herein have the meanings assigned to them by generally accepted accounting principles applied on a consistent basis by the accounting entity to which they refer. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of GWI and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b) If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either a Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrowers shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Credit 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.
1.4 GWI as Agent of Borrowers and Guarantors. Each Borrower and Guarantor agrees (a) that all requests made, notices received and other actions taken by GWI on behalf of the Borrowers and/or Guarantors pursuant this Credit Agreement are made as agent for each such Borrower or Guarantor and (b) that GWI may accept service of process on its behalf.
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1.5 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent or the Issuing Lender, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of borrowings of Loans, Letter of Credit Borrowings and Outstanding amount of the Loans denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the Issuing Lender, as applicable.
(b) Wherever in this Credit Agreement in connection with a borrowing, conversion, continuation or prepayment of a Applicable Offered Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such borrowing, Applicable Offered Rate Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Dollar Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the Issuing Lender, as the case may be.
1.6 Additional Alternative Currencies.
(a) GWI may from time to time request that Letters of Credit be issued and/or that Applicable Offered Rate Loans be made in a currency other than those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request, such request shall be subject to the approval of the Administrative Agent and the Issuing Lender; and in the case of any such request with respect to the making of Applicable Offered Rate Loans, such request shall be subject to the approval of the Administrative Agent and the Applicable Lenders providing such Applicable Offered Rate Loans (or any applicable commitments therefor).
(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., five Business Days prior to the date of the desired Letter of Credit Borrowing or date of borrowing of Loans, as applicable, (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the Issuing Lender, in its or their sole discretion). In the case of any such request pertaining to Applicable Offered Rate Loans, the Administrative Agent shall promptly notify each Applicable Lender providing such Applicable Offered Rate Loans (or any applicable commitments therefor) thereof; and in the case of any such request, the Administrative Agent shall promptly notify the Issuing Lender thereof. Each Applicable Lender (in the case of any such request pertaining to Applicable Offered Rate Loans (or any applicable commitments therefor)) and the Issuing Lender (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., five Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Applicable Offered Rate Loans or issuance of Letters of Credit in such requested currency.
(c) Any failure by an Applicable Lender or the Issuing Lender, as the case may be, to respond to such request within the time period specified in the preceding clause shall be deemed to be a refusal by such Applicable Lender or the Issuing Lender to permit Applicable Offered Rate Loans or
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Letters of Credit to be issued in such requested currency. If the Administrative Agent and all Applicable Lenders consent to making Applicable Offered Rate Loans (or any applicable commitments therefor) in such requested currency, the Administrative Agent shall so notify GWI and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any applicable borrowings of Applicable Offered Rate Loans; and if the Administrative Agent and the Issuing Lender consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify GWI and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this §1.6, the Administrative Agent shall promptly so notify GWI.
2. THE REVOLVING CREDIT FACILITIES.
2.1 Commitment to Lend. Subject to the terms and conditions set forth in this Credit Agreement, each of the Applicable Lenders severally agrees on the Restatement Effective Date to lend (a) to the Domestic Borrowers in Dollars, (b) to the European Borrowers in Euro, (c) to the Canadian Borrower in Canadian Dollars, (d) [Reserved], (e) to the UK Borrower in GBP and/or (f) to each applicable Designated Subsidiary, if any, in such currency (including any Alternative Currency) as may be specified in each applicable Designated Subsidiary Joinder, and such Borrower may borrow, repay, and reborrow from time to time between the Restatement Effective Date and the Maturity Date upon notice by such Borrower to the Applicable Agent given in accordance with §2.6, such sums as are requested by such Borrower up to a maximum aggregate principal amount outstanding (after giving effect to all amounts requested) at any one time equal to such Lender’s Commitment, minus the amount of such Lender’s Commitment Percentage of the Letter of Credit Obligations in respect of such Borrower; provided, (A) that the Total Domestic Revolver Exposure (after giving effect to all amounts requested) does not exceed the Aggregate Domestic Revolving Loan Commitments, (B) the Total European Exposure (after giving effect to all amounts requested) does not exceed the Aggregate European Commitments, (C) the Total Canadian Revolver Exposure (after giving effect to all amounts requested) does not exceed the Aggregate Canadian Revolving Loan Commitments, (D) [Reserved], (E) the Total UK Revolver Exposure does not exceed the Aggregate UK Revolving Loan Commitments and (F) the Total Designated Subsidiary Exposure does not exceed the Aggregate Designated Subsidiary Commitments. The Loans under this §2.1 shall be made pro rata in accordance with each Lender’s Commitment Percentage. Subject to §2.10, the Domestic Revolving Loan Commitments, the Canadian Revolving Loan Commitments, the European Commitments, the UK Revolving Loan Commitments and the applicable Designated Subsidiary Commitments, if any, shall only be available to the Domestic Borrowers, the Canadian Borrower, the European Borrowers, the UK Borrower and each applicable Designated Subsidiary, respectively, and if unused by such Borrower, will not be available to any other Borrower. Each request for a Loan hereunder shall constitute a representation and warranty by the Applicable Borrower that the conditions set forth in §13 (subject, in the case of any Loans borrowed pursuant to §6.18 in connection with a Permitted Acquisition, to the provisions of §6.18) have been satisfied on the date of such request. Notwithstanding the foregoing, any Cashless Option Revolving Lender as defined in and in accordance with Amendment No. 3 shall not actually make a loan on the Restatement Effective Date but shall be deemed to have exchanged its outstanding Revolving Loans (if any) under and as defined in the Existing Credit Agreement in accordance with Amendment No. 3.
2.2 Commitment Fee.
(a) The Domestic Borrowers, jointly and severally, hereby agree to pay to the Administrative Agent for the accounts of the Domestic Lenders in accordance with their respective Commitment Percentages, a commitment fee in Dollars (the “Domestic Revolving Loan Commitment Fee”) at the applicable Commitment Fee Rate per annum on the actual daily amount during each calendar quarter or
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portion thereof from the Restatement Effective Date to the Maturity Date by which the Aggregate Domestic Revolving Loan Commitments exceed the Total Domestic Revolver Exposure (excluding the outstanding principal amount of the Domestic Swingline Loans).
(b) The European Borrowers hereby agrees to pay to the European Agent for the accounts of the European Lenders in accordance with their respective Commitment Percentages, a commitment fee in Dollars (the “European Commitment Fee”) at the applicable Commitment Fee Rate per annum on the actual daily amount during each calendar quarter or portion thereof from the Restatement Effective Date to the Maturity Date by which the Aggregate European Commitments exceed the Total European Exposure (excluding the outstanding principal amount of the European Swingline Loans).
(c) The Canadian Borrower hereby agrees to pay to the Canadian Agent for the accounts of the Canadian Lenders in accordance with their respective Commitment Percentages, a commitment fee in Dollars (the “Canadian Revolving Loan Commitment Fee”) at the applicable Commitment Fee Rate per annum on the actual daily amount during each calendar quarter or portion thereof from the Restatement Effective Date to the Maturity Date by which the Aggregate Canadian Revolving Loan Commitments exceed the Total Canadian Revolver Exposure (excluding the outstanding principal amount of the Canadian Swingline Loans).
(d) [Reserved].
(e) The UK Borrower hereby agrees to pay to the UK Agent for the accounts of the UK Lenders in accordance with their respective Commitment Percentages, a commitment fee in Dollars (the “UK Revolving Loan Commitment Fee”) at the applicable Commitment Fee Rate per annum on the actual daily amount during each calendar quarter or portion thereof from the Restatement Effective Date to the Maturity Date by which the Aggregate UK Revolving Loan Commitments exceed the Total UK Revolver Exposure (excluding the outstanding principal amount of the UK Swingline Loans).
(f) The Commitment Fees shall be payable quarterly in arrears within three (3) days of the last day of each calendar quarter for the immediately preceding calendar quarter commencing on the first such date following the Restatement Effective Date, with a final payment on the Maturity Date or any earlier date on which the applicable Commitments shall terminate.
(g) The foregoing Commitment Fees are subject to adjustment as provided in §6.17(a)(iii).
2.3 Reduction of Applicable Commitments. Each Borrower shall have the right at any time and from time to time upon three (3) Business Days prior written notice to the Applicable Agent to reduce by $5,000,000 or a whole multiple of $1,000,000 in excess thereof or to terminate entirely the applicable Commitment, whereupon the applicable Commitments of the Lenders shall be reduced pro rata in accordance with their respective Commitment Percentages of the amount specified in such notice or, as the case may be, terminated. Promptly after receiving any notice of such Borrower delivered pursuant to this §2.3, the Applicable Agent will notify the Applicable Lenders of the substance thereof. No reduction or termination of the applicable Commitments may be reinstated.
2.4 Evidence of Debt. The Loans made pursuant to §2.1 by each Applicable Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Applicable Agent in the ordinary course of business. The accounts or records maintained by the Agents and each Lender shall be conclusive absent manifest error of the amount of the Loans 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 any Borrower hereunder to pay any amount owing with respect to the applicable Obligations. In the event of any conflict between the accounts and records maintained
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by any Lender and the accounts and records of the Applicable Agent in respect of such matters, the accounts and records of the Applicable Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Applicable Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note (a) in the case of the Domestic Borrowers, in substantially the form of Exhibit A-1 (each, a “Domestic Revolving Note”), (b) in the case of the European Borrowers, in substantially the form of Exhibit A-2 (each, a “European Note”), (c) [Reserved], (d) in the case of the Canadian Borrower, in substantially the form of Exhibit A-4 (each, a “Canadian Revolving Note”) and (e) in the case of the UK Borrower, in substantially the form of Exhibit A-5 (each, a “UK Revolving Note”), in each case dated as of the Restatement Effective Date (or other such date on which a Lender may become a party hereto in accordance with §20) and completed with appropriate insertions. Each such Note shall be payable to the order of the Applicable Lender and shall evidence such Lender’s applicable Loans in addition to such accounts or records. Each such Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
2.5 Interest on the Revolving Loans. Except as otherwise provided in §6.10:
(a) Each Domestic Revolving Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto at a rate per annum equal to (i) the Base Rate plus the Applicable Margin with respect to Base Rate Loans as in effect from time to time or (ii) the LIBOR Rate determined for such Interest Period plus the Applicable Margin with respect to LIBOR Rate Loans as in effect from time to time.
(b) Each Canadian Revolving Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto at a rate per annum equal to (i) the Canadian Base Rate plus the Applicable Margin with respect to Canadian Base Rate Loans as in effect from time to time or (ii) the Applicable Offered Rate determined for such Interest Period plus the Applicable Margin with respect to Applicable Offered Rate Loans as in effect from time to time.
(c) Each European Loan and UK Revolving Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto at a rate per annum equal to the Applicable Offered Rate, as applicable, determined for such Interest Period plus the Applicable Margin with respect to Applicable Offered Rate Loans as in effect from time to time.
(d) Each Borrower promises to pay interest on the outstanding amount of its applicable Loans on each Interest Payment Date with respect thereto.
(e) If, as a result of any restatement of or other adjustment to the financial statements of the Borrowers and their Restricted Subsidiaries or for any other reason, the Borrowers or the Lenders determine that (i) the Total Leverage Ratio as calculated by the Borrowers as of any applicable date was inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such period, each Borrower shall immediately be obligated to pay to the Applicable Agent for the account of the Applicable Lenders or the Issuing Lender, as the case may be, promptly on demand by the Administrative Agent or any other Applicable Agent (or, after 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, automatically and without further action by any Agent, any Lender or the Issuing Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest
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and fees actually paid for such period. This paragraph shall not limit the rights of any Agent, any Lender or the Issuing Lender, as the case may be, under §§5.10, 6.10, or 14. Each Borrower’s obligations under this paragraph shall survive the termination of the Total Commitment and the repayment of all other Obligations hereunder.
2.6 Requests for Loans.
(a) The Domestic Borrowers shall give to the Administrative Agent written notice in the form of Exhibit C-1 or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent (or telephonic notice confirmed in a writing by a Loan Request) of each Domestic Revolving Loan requested hereunder (a “Loan Request”) not later than (i) 2:00 p.m. (New York time) one (1) Business Day prior to any Drawdown Date of any Base Rate Loan or (ii) 2:00 p.m. (New York time) three (3) Business Days prior to any Drawdown Date of any LIBOR Rate Loan. Each Loan Request shall be in a minimum aggregate amount of $500,000 or an integral multiple thereof.
(b) The European Borrowers shall give to the European Agent a Loan Request of each European Loan requested hereunder not later than 12:00 noon (New York time) three (3) Business Days prior to any Drawdown Date of any Applicable Offered Rate Loan.
(c) The Canadian Borrower shall give to the Canadian Agent a Loan Request of each Canadian Revolving Loan requested hereunder not later than (i) 11:00 a.m. (New York time) one (1) Business Day prior to any Drawdown Date of any Canadian Base Rate Loan or (ii) 12:00 noon (New York time) three (3) Business Days prior to any Drawdown Date of any Applicable Offered Rate Loan.
(d) [Reserved].
(e) The UK Borrower shall give to the Administrative Agent (with a copy to Bank of America London Branch) a Loan Request of each UK Revolving Loan requested hereunder not later than 2:00 p.m. (New York time) three (3) Business Days prior to any Drawdown Date of any Applicable Offered Rate Loan.
(f) Each Loan Request shall specify (i) the principal amount of the applicable Loan requested, (ii) the proposed Drawdown Date of such Loan, (iii) the Interest Period for such Loan and (iv) the Type, if applicable, of such Loan. Promptly upon receipt of any such notice (but in any event on the same day such Loan Request is received by the Applicable Agent), the Applicable Agent shall notify each of the Applicable Lenders thereof. Each such Loan Request shall be irrevocable and binding on the Applicable Borrower and shall obligate the Applicable Borrower to accept the requested Loan on the proposed Drawdown Date thereof.
2.7 The Swinglines.
2.7.1. Swingline Loans.
(a) Subject to the terms and conditions hereinafter set forth, upon notice by the Domestic Borrowers made to the Domestic Swingline Lender in accordance with §2.7.2, the Domestic Swingline Lender agrees to lend to such Domestic Borrowers Domestic Swingline Loans in Dollars on any Business Day prior to the Swingline Expiry Date in an aggregate principal amount not to exceed the Domestic Swingline Sublimit. Each Domestic Swingline Loan shall be in a minimum amount equal to $500,000 or a multiple of $100,000 in excess thereof. The Domestic Swingline Loans are being made for the administrative convenience of the Domestic Borrowers, the Domestic Swingline Lender and the Lenders.
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(b) Subject to the terms and conditions hereinafter set forth, upon notice by the European Borrowers made to the European Swingline Lender in accordance with §2.7.2, the European Swingline Lender agrees to lend to the European Borrowers European Swingline Loans in Euro on any Business Day prior to the Swingline Expiry Date in an aggregate principal amount not to exceed the European Swingline Sublimit. Each European Swingline Loan shall be in a minimum amount equal to the Euro Equivalent of $500,000 or a multiple of the Euro Equivalent of $100,000 in excess thereof. The European Swingline Loans are being made for the administrative convenience of the European Borrowers, the European Swingline Lender and the Lenders.
(c) Subject to the terms and conditions hereinafter set forth, upon notice by the Canadian Borrower made to the Canadian Swingline Lender in accordance with §2.7.2, the Canadian Swingline Lender agrees to lend to the Canadian Borrower Canadian Swingline Loans in Canadian Dollars on any Business Day prior to the Swingline Expiry Date in an aggregate principal amount not to exceed the Canadian Swingline Sublimit. Each Canadian Swingline Loan shall be in a minimum amount equal to the Canadian Dollar Equivalent of $500,000 or a multiple of the Canadian Dollar Equivalent of $100,000 in excess thereof. The Canadian Swingline Loans are being made for the administrative convenience of the Canadian Borrower, the Canadian Swingline Lender and the Lenders.
(d) [Reserved].
(e) Subject to the terms and conditions hereinafter set forth, upon notice by the UK Borrower made to the UK Swingline Lender in accordance with §2.7.2, the UK Swingline Lender agrees to lend to the UK Borrower UK Swingline Loans in GBP on any Business Day prior to the Swingline Expiry Date in an aggregate principal amount not to exceed the UK Swingline Sublimit. Each UK Swingline Loan shall be in a minimum amount equal to the Dollar Equivalent of $500,000 or a multiple of the Dollar Equivalent of $100,000 in excess thereof. The UK Swingline Loans are being made for the administrative convenience of the UK Borrower, the UK Swingline Lender and the Lenders.
(f) Notwithstanding any other provisions of this Credit Agreement (i) in addition to the limits set forth in clauses (a) through (e) above, at no time shall (1) the Total Domestic Revolver Exposure exceed the Aggregate Domestic Revolving Loan Commitments at such time, (2) the Total Canadian Revolver Exposure exceed the Aggregate Canadian Revolving Loan Commitments at such time, (3) the Total European Exposure exceed the Aggregate European Commitments at such time, (4) [Reserved] and (5) the Total UK Revolver Exposure exceed the Aggregate UK Revolving Loan Commitments at such time and (ii) the Applicable Swingline Lender shall not advance any Swingline Loans after it has received notice from any Lender or any Agent that a Default or Event of Default has occurred and is continuing and stating that no new Swingline Loans are to be made until such Default or Event of Default has been cured or waived in accordance with the provisions of this Credit Agreement. Within the foregoing limits and subject to the terms and conditions set forth herein, each Borrower may borrow, prepay and reborrow Domestic Swingline Loans, European Swingline Loans, Canadian Swingline Loans or UK Swingline Loans, as applicable.
2.7.2. Request for Swingline Loans. To request a Swingline Loan, the Applicable Borrower shall send to the Administrative Agent and the Applicable Swingline Lender written notice in the form of Exhibit C-2 or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent) (a “Swingline Loan Request”) (or, in the case of a Domestic Borrower, telephonic notice confirmed in a writing by a Swingline Loan Request) of each Swingline Loan requested hereunder not later than 1:00 p.m. (New York time), in respect of a Domestic Borrower or Canadian Borrower, or 11:00 a.m. (London time), in respect of the European Borrowers or UK Borrower, on the proposed Drawdown Date of any Swingline Loan. Each such Swingline Loan Request shall set forth the principal amount of
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the proposed Swingline Loan and the Drawdown Date of such Swingline Loan. Each Swingline Loan Request shall be binding on the Applicable Borrower and shall obligate the Applicable Borrower to borrow the Swingline Loan from the Applicable Swingline Lender on the proposed Drawdown Date thereof. The Administrative Agent will promptly advise the Applicable Swingline Lender of any such notice received from any Borrower. Upon satisfaction of the applicable conditions set forth in this Credit Agreement, on the proposed Drawdown Date the Applicable Swingline Lender shall make the Swingline Loan available to the Applicable Borrower no later than 3:00 p.m. (New York time), in respect of a Domestic Borrower or Canadian Borrower, or 3:00 p.m. (London time), in respect of the European Borrowers or UK Borrower, on the proposed Drawdown Date by crediting the amount of the Swingline Loan to the general deposit account of the Applicable Borrower maintained with the Applicable Swingline Lender or such other deposit account as indicated by the Applicable Borrower in the Swingline Loan Request.
2.7.3. Borrowings to Repay Swingline Loans. Each Borrower absolutely, irrevocably and unconditionally promises to pay in full the outstanding principal balance of all applicable Swingline Loans advanced to it on the earlier to occur of (i)(A) in the case of a Domestic Borrower, the date fifteen (15) Business Days after such Loan is made and (B) in the case of each other Borrower, the date ninety (90) Business Days after such Loan is made and (ii) the Swingline Expiry Date. Each Borrower may prepay the Swingline Loans at any time without penalty or premium. In addition, in the event the outstanding principal balance of any Swingline Loan remains unpaid when due, the Applicable Swingline Lender may, on any Business Day, in its sole discretion, demand repayment of the (i) Domestic Swingline Loans by the Domestic Borrowers, and the Administrative Agent shall give notice to the Domestic Lenders that the outstanding Domestic Swingline Loans shall be funded with a borrowing of Domestic Revolving Loans, in which case each of the Domestic Lenders shall make Domestic Revolving Loans constituting Base Rate Loans to the Domestic Borrowers, on the next succeeding Business Day following such notice, in an amount equal to such Lender’s Commitment Percentage of the aggregate amount of all Domestic Swingline Loans outstanding to the Domestic Borrowers, (ii) Canadian Swingline Loans by the Canadian Borrower, and the Canadian Agent shall give notice to the Canadian Lenders that the outstanding Canadian Swingline Loans shall be funded with a borrowing of Canadian Revolving Loans, in which case each of the Canadian Lenders shall make Canadian Revolving Loans constituting Canadian Base Rate Loans to the Canadian Borrower, on the next succeeding Business Day following such notice, in an amount equal to such Canadian Lender’s Commitment Percentage of the aggregate amount of all Canadian Swingline Loans outstanding to the Canadian Borrower, (iii) European Swingline Loans by the European Borrowers, and the European Agent shall give notice to the European Lenders that the outstanding European Swingline Loans shall be funded with a borrowing of European Loans, in which case each of the European Lenders shall make European Loans constituting Euro Base Rate Loans to the European Borrowers, three Business Days following such notice, in an amount equal to such European Lender’s Commitment Percentage of the aggregate amount of all European Swingline Loans outstanding to the European Borrowers or (iv) UK Swingline Loans by the UK Borrower, and the Administrative Agent shall give notice to the UK Lenders that the outstanding UK Swingline Loans shall be funded with a borrowing of UK Revolving Loans, in which case each of the UK Lenders shall make UK Revolving Loans constituting UK Overnight Rate Loans to the UK Borrower, three Business Days following such notice, in an amount equal to such UK Lender’s Commitment Percentage of the aggregate amount of all UK Swingline Loans outstanding to the UK Borrower. The proceeds thereof shall be applied directly to the Applicable Swingline Lender to repay such Swingline Lender for such outstanding Swingline Loans. Each Applicable Lender hereby absolutely, unconditionally and irrevocably agrees to make such applicable Loans upon one Business Days’ notice as set forth above, notwithstanding (a) that the amount of such applicable Loan may not comply with the applicable minimums otherwise required hereunder, (b) the failure of any Borrower to meet the conditions set forth in §§12 or 13, (c) the occurrence or continuance of a Default or an Event of Default hereunder, (d) the date of such applicable Loan, and (e) the amount of, or termination of, the Aggregate Domestic Revolving Loan Commitments, the Aggregate
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Canadian Revolving Loan Commitments, the Aggregate European Commitments or the Aggregate UK Revolving Loan Commitments, as the case may be, at such time. In the event that it is impracticable for such applicable Loan to be made for any reason on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code of the United States in respect of any of the Borrowers or any of the Restricted Subsidiaries), then each Applicable Lender hereby agrees that it shall forthwith purchase (as of the date such applicable Loan would have been made, but adjusted for any payments received from the Applicable Borrower on or after such date and prior to such purchase) from the Applicable Swingline Lender, and the Applicable Swingline Lender shall sell to each Applicable Lender, such participations in the Swingline Loans (including all accrued and unpaid interest thereon) outstanding as shall be necessary to cause the Applicable Lenders to share in such Swingline Loans pro rata based on their respective applicable Commitment Percentages (without regard to any termination of the Total Commitment hereunder) by making available to the Applicable Swingline Lender an amount equal to such Lender’s participation in such Swingline Loans; provided that (x) all interest payable on such Swingline Loans shall be for the account of the Applicable Swingline Lender as a funding and administrative fee until the date as of which the respective participation is purchased, and (y) at the time any purchase of such participation is actually made, the purchasing Lender shall be required to pay the Applicable Swingline Lender interest on the principal amount of the participation so purchased for each day from and including the date such applicable Loan would otherwise have been made until the date of payment for such participation at the rate of interest in effect applicable to Applicable Floating Rate Loans during such period.
2.7.4. Evidence of Swingline Loan Obligations. Each Swingline Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Applicable Borrower to such Swingline Lender resulting from each Swingline Loan made by such Swingline Lender, including the amounts of principal and interest payable and paid to such Swingline Lender from time to time hereunder. The outstanding amount of the Swingline Loans set forth on such accounts shall be prima facie evidence of the principal amount thereof owing and unpaid to the Applicable Swingline Lender, but the failure to record, or any error in so recording, any such amount on such accounts shall not limit or otherwise affect the actual amount of the obligations of the Applicable Borrower hereunder to make payments of principal of or interest on the Swingline Loans when due.
2.7.5. Interest on Swingline Loans.
(a) Except as otherwise provided in §6.10, each Domestic Swingline Loan shall bear interest from the Drawdown Date thereof until repaid in full or converted into a Domestic Revolving Loan at the rate per annum equal to the Base Rate plus the Applicable Margin as in effect from time to time. Domestic Swingline Loans may not be converted into LIBOR Rate Loans. The Domestic Borrowers promise to pay interest on the outstanding amount of its Domestic Swingline Loans on each Interest Payment Date with respect thereto.
(b) Except as otherwise provided in §6.10, each European Swingline Loan shall bear interest from the Drawdown Date thereof until repaid in full or converted into a European Loan at the rate per annum equal to the Euro Base Rate plus the Applicable Margin as in effect from time to time. European Swingline Loans may not be converted into Applicable Offered Rate Loans. The European Borrowers promise to pay interest on the outstanding amount of its European Swingline Loans on each Interest Payment Date with respect thereto.
(c) Except as otherwise provided in §6.10, each Canadian Swingline Loan shall bear interest from the Drawdown Date thereof until repaid in full or converted into a Canadian Revolving Loan at the rate per annum equal to the Canadian Base Rate plus the Applicable Margin as in effect from time to time. Canadian Swingline Loans may not be converted into Applicable Offered Rate Loans. The Canadian Borrower promises to pay interest on the outstanding amount of its Canadian Swingline Loans on each Interest Payment Date with respect thereto.
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(d) [Reserved].
(e) Except as otherwise provided in §6.10, each UK Swingline Loan shall bear interest from the Drawdown Date thereof until repaid in full or converted into a UK Revolving Loan at the rate per annum equal to the UK Overnight Rate plus the Applicable Margin as in effect from time to time. UK Swingline Loans may not be converted into Applicable Offered Rate Loans. The UK Borrower promises to pay interest on the outstanding amount of its UK Swingline Loans on each Interest Payment Date with respect thereto.
2.7.6. Provisions Related to Incremental Revolving Loan Commitments and Extended Revolving Loan Commitments. If the maturity date shall have occurred in respect of any tranche of Revolving Loan Commitments at a time when another tranche or tranches of Revolving Loan Commitments is or are in effect with a longer maturity date, then on the earliest occurring maturity date all then outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such maturity date); provided, however, that if on the occurrence of such earliest maturity date (after giving effect to any repayments of Revolving Loans and any reallocation of Letter of Credit participations as contemplated in §5.1.6), there shall exist sufficient unutilized Extended Revolving Loan Commitments or Incremental Revolving Loan Commitments so that the respective outstanding Swingline Loans could be incurred pursuant to the Extended Revolving Loan Commitments or Incremental Revolving Loan Commitments which will remain in effect after the occurrence of such maturity date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and same shall be deemed to have been incurred solely pursuant to the relevant Extended Revolving Loan Commitments or Incremental Revolving Loan Commitments in effect on such date, and such Swingline Loans shall not be so required to be repaid in full on such earliest maturity date.
2.8 Borrowers’ Conversion Options; Continuation of Loans.
2.8.1. Conversion to Different Type of Domestic Revolving Loan or Canadian Revolving Loan. Any Borrower may elect from time to time to convert any outstanding Domestic Revolving Loan or Canadian Revolving Loan, as the case may be, to a Domestic Revolving Loan or Canadian Revolving Loan, as the case may be, of another Type, provided that (a) with respect to any such conversion of an Applicable Offered Rate Loan to an Applicable Floating Rate Loan, the Applicable Borrower shall give the Administrative Agent at least one (1) Business Day prior written notice of such election; (b) with respect to any such conversion of an Applicable Floating Rate Loan to an Applicable Offered Rate Loan, the Applicable Borrower shall give the Administrative Agent at least three (3) Business Days prior written notice of such election; (c) with respect to any such conversion of an Applicable Offered Rate Loan to an Applicable Floating Rate Loan, such conversion shall only be made on the last day of the Interest Period with respect thereto or if made on a day other than the last day of the Interest Period with respect thereto, the Borrowers shall be responsible for any applicable breakage costs incurred pursuant to §6.9; (d) no Applicable Floating Rate Loan may be converted into an Applicable Offered Rate Loan when a Payment Event of Default or an Event of Default under §14.1(g) or (h) has occurred and is continuing; and (e) no more than fifteen (15) Applicable Offered Rate Loans having different Interest Periods may be outstanding at any time. On the date on which such conversion is being made, each Lender shall take such action as is necessary to transfer its Commitment Percentage of such Loans to its applicable Lending Office. All or any part of outstanding Domestic Revolving Loans or Canadian Revolving Loans of any Type may be converted into a Domestic Revolving Loan or Canadian Revolving Loan of another Type as provided herein, provided that any partial conversion shall be in an aggregate principal amount of $500,000 or a whole multiple thereof. Each Conversion Request relating to the conversion of a Domestic Revolving Loan or Canadian Revolving Loan to an Applicable Offered Rate Loan shall be irrevocable by the Applicable Borrower.
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2.8.2. Continuation of Type of Loan. Any Domestic Revolving Loan, European Loan, Canadian Revolving Loan, UK Revolving Loan or Designated Subsidiary Revolving Loan of any Type may be continued by the Applicable Borrower as a Domestic Revolving Loan, European Loan, Canadian Revolving Loan, UK Revolving Loan or Designated Subsidiary Revolving Loan, respectively, of the same Type upon the expiration of any Interest Period with respect thereto by compliance by such Borrower with the notice provisions contained in §2.8.1; provided that no Applicable Offered Rate Loan may be continued as such when a Payment Event of Default or an Event of Default under §14.1(g) or (h) has occurred and is continuing, but shall be automatically converted (a) in the case of the Domestic Borrowers, to a Base Rate Loan, (b) in the case of the Canadian Borrower, to a Canadian Base Rate Loan, or (c) in the case of the European Borrowers, the UK Borrower or any Designated Subsidiary Borrower, to a one month Applicable Offered Rate Loan, in each case on the last day of the first Interest Period relating thereto ending during the continuance of such an Event of Default of which officers of the Administrative Agent active upon the Applicable Borrower’s account have actual knowledge. In the event that the Applicable Borrower fails to provide any such notice with respect to the continuation of any Applicable Offered Rate Loan as such, then such Applicable Offered Rate Loan shall be automatically continued with an Interest Period of one month on the last day of the first Interest Period relating thereto. The Applicable Agent shall notify the Applicable Lenders promptly when any such automatic continuation contemplated by this §2.8.2 is scheduled to occur.
2.8.3. Applicable Offered Rate Loans.
(a) Any conversion by any Borrower to or from Applicable Offered Rate Loans shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of all Applicable Offered Rate Loans having the same Interest Period shall not be less than $500,000 or a whole multiple of $500,000.
(b) If any Borrower wishes to request Applicable Offered Rate Loans having an Interest Period other than 1, 2, 3 or 6 months in duration as provided in the definition of “Interest Period”, the applicable notice must be received by the Applicable Agent not later than 11:00 a.m. (local time), four (4) Business Days prior to the requested date of such borrowing, conversion or continuation of Applicable Offered Rate Loans denominated in Dollars, Canadian Dollars, Euro, GBP or any other Alternative Currency, as applicable, whereupon the Applicable Agent shall give prompt notice to the Applicable Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m. (local time), three (3) Business Days before the requested date of such borrowing, conversion or continuation of Applicable Offered Rate Loans denominated in Dollars, Canadian Dollars, Euro, GBP or any other Alternative Currency, as applicable, the Applicable Agent shall notify the Applicable Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Applicable Lenders.
2.9 Funds for Loans.
2.9.1. Funding Procedures. Not later than 2:00 p.m. (New York time), with respect to the Domestic Borrowers or the Canadian Borrower, or 1:00 p.m. (London time), or with respect to the European Borrowers or UK Borrower, on the proposed Drawdown Date of any Domestic Revolving Loan, European Loan, Canadian Revolving Loan or UK Revolving Loan, each of the Applicable Lenders will make available to the Applicable Agent at the Applicable Agent’s Office, in immediately available funds, the amount of such Lender’s Commitment Percentage of such Loans made or to be made on such
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date. Upon receipt from each Applicable Lender of such amount, and upon receipt of the documents required by §§12 (with respect to such Loans to be made on the Closing Date) and 13 and the satisfaction of the other conditions set forth herein, to the extent applicable, the Applicable Agent will make available to the Applicable Borrower the aggregate amount of such Loans made available to the Applicable Agent by the Applicable Lenders. The failure or refusal of any Applicable Lender to make available to the Applicable Agent at the aforesaid time and place on any Drawdown Date the amount of its Commitment Percentage of the requested Loans shall not relieve any other Applicable Lender from its several obligation hereunder to make available to the Applicable Agent the amount of such other Applicable Lender’s Commitment Percentage of any requested Loans. In the event that the Applicable Agent becomes aware of any Applicable Lender’s failure to make available the amount of its Commitment Percentage of any requested Loan, the Applicable Agent shall notify the Applicable Borrower of the identity of such Lender and the amount such Lender has not made available to the Applicable Agent.
2.9.2. Advances by Applicable Agent. The Applicable Agent may, unless notified to the contrary by any Applicable Lender prior to a Drawdown Date of a Domestic Revolving Loan, European Loan, Canadian Revolving Loan or UK Revolving Loan assume that such Lender has made available to the Applicable Agent on such Drawdown Date the amount of such Lender’s Commitment Percentage of the Loans to be made on such Drawdown Date, and the Applicable Agent may (but it shall not be required to), in reliance upon such assumption, make available to the Applicable Borrower a corresponding amount. If any Applicable Lender makes available to the Applicable Agent such amount on a date after such Drawdown Date, such Applicable Lender shall pay to the Applicable Agent on demand an amount equal to the product of (a) the average computed for the period referred to in clause (c) below, of the greater of the Federal Funds Rate and a rate determined by the Applicable Agent in accordance with banking industry rules on interbank compensation (including, in the case of amounts owed to the Canadian Agent, the Bank of Canada Rate), plus any administrative, processing or similar fees customarily charged by the Applicable Agent in connection with the foregoing, times (b) the amount of such Lender’s Commitment Percentage of such Loans, times (c) a fraction, the numerator of which is the number of days that shall have elapsed from and including such Drawdown Date to the date on which the amount of such Applicable Lender’s Commitment Percentage of such Loans shall become immediately available to the Applicable Agent, and the denominator of which is 360. A statement of the Applicable Agent submitted to such Applicable Lender with respect to any amounts owing under this paragraph shall be prima facie evidence of the amount due and owing to the Applicable Agent by such Lender. If the amount of such Lender’s Commitment Percentage of such Loans is not made available to the Applicable Agent by such Lender within three (3) Business Days following such Drawdown Date, the Applicable Agent shall be entitled to recover such amount from the Applicable Borrower on demand, with interest thereon at the rate per annum applicable to the applicable Loans made on such Drawdown Date.
2.9.3. Discretion of Lenders as to Manner of Funding. Notwithstanding any provision of this Credit Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of such Lender’s Loans in any manner such Lender deems to be appropriate (including funding such Loans through a foreign branch or Affiliate of such Lender, so long as such funding does not adversely affect the Borrowers).
2.10 Reallocation of Commitments.
(a) Subject to the conditions set forth in this §2.10, the Borrowers shall have the right once during each fiscal quarter upon five (5) Business Days prior written notice to the Administrative Agent to (i) increase the Aggregate Domestic Revolving Loan Commitments by reducing and reallocating by an equivalent amount all or a portion of the Aggregate Canadian Revolving Loan Commitments and/or the Aggregate European Commitments and/or the Aggregate UK Revolving Loan Commitments and/or any Aggregate Designated Subsidiary Commitments to the Aggregate Domestic Revolving Loan
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Commitments, (ii) increase the Aggregate Canadian Revolving Loan Commitments by reducing and reallocating by an equivalent amount a portion of the Aggregate Domestic Revolving Loan Commitments to the Aggregate Canadian Revolving Loan Commitments, (iii) increase the Aggregate European Commitments by reducing and reallocating by an equivalent amount a portion of the Aggregate Domestic Revolving Loan Commitments to the Aggregate European Commitments, (iv) [Reserved], (v) increase the Aggregate UK Revolving Loan Commitments by reducing or reallocating by an equivalent amount a portion of the Aggregate Domestic Revolving Loan Commitments to the Aggregate UK Revolving Loan Commitments and/or (vi) increase the Aggregate Designated Subsidiary Commitments by reducing or reallocating by an equivalent amount a portion of the Aggregate Domestic Revolving Loan Commitments to the Aggregate Designated Subsidiary Commitments; provided that any such increase shall not be an amount less than $5,000,000.
(b) Any Reallocation pursuant to this §2.10 shall be subject to the following conditions:
(i) Each Reallocation of applicable Commitment amounts shall be made only between the offices or Affiliates of Applicable Lenders such that the sum of all the applicable Commitments of each Applicable Lender and its Affiliates shall not be increased or decreased as a result of any Reallocation. Each Applicable Lender, on behalf of itself and its Affiliates, hereby undertakes to comply with the lending obligations arising pursuant to any Reallocation of Commitments.
(ii) Each increase in (A) the Aggregate Domestic Revolving Loan Commitments shall be offset by a corresponding and equivalent reduction in one or more of the Aggregate Canadian Revolving Loan Commitments, Aggregate European Commitments and Aggregate UK Revolving Loan Commitments, and (B) the Aggregate Canadian Revolving Loan Commitments, Aggregate European Commitments, Aggregate UK Revolving Loan Commitments and any Aggregate Designated Subsidiary Commitments, as the case may be, shall be offset by a corresponding and equivalent reduction in the Aggregate Domestic Revolving Loan Commitments, such that the Total Commitment in effect immediately before a Reallocation shall be equal to the Total Commitment immediately after, and after giving effect to, such Reallocation.
(iii) No Reallocation shall increase the Aggregate Foreign Currency Revolving Loan Commitments in excess of $500,000,000 (as any of the same may be increased pursuant to §6).
(iv) No Reallocation shall result in (A) any Domestic Lender having a positive Canadian Revolving Loan Commitment, European Commitment, UK Revolving Loan Commitment or any Designated Subsidiary Commitment if such Domestic Lender, or its Affiliate, did not have such positive Canadian Revolving Loan Commitment, European Commitment, UK Revolving Loan Commitment or applicable Designated Subsidiary Commitment on the Restatement Effective Date or acquire such applicable Commitment by assignment or by operation of §6.23 after the Restatement Effective Date, or (B) any European Lender having a positive Canadian Revolving Loan Commitment, UK Revolving Loan Commitment or any Designated Subsidiary Commitment if such European Lender, or its Affiliate, did not have such positive Canadian Revolving Loan Commitment, UK Revolving Loan Commitment or applicable Designated Subsidiary Commitment on the Restatement Effective Date or acquire such applicable Commitment by assignment or by operation of §6.23 after the Restatement Effective Date, or (C) any Canadian Lender having a positive European Commitment, UK Revolving Loan Commitment or any Designated Subsidiary Commitment if such Canadian Lender, or its Affiliate, did not have such positive European Commitment, UK Revolving Loan Commitment or applicable Designated Subsidiary Commitment on the
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Restatement Effective Date or acquire such applicable Commitment by assignment or by operation of §6.23 after the Restatement Effective Date, (D) any UK Lender having a positive European Commitment, Canadian Revolving Loan Commitment or any Designated Subsidiary Commitment if such UK Lender, or its Affiliate, did not have such positive European Commitment, Canadian Revolving Loan Commitment or applicable Designated Subsidiary Commitment on the Restatement Effective Date or acquire such applicable Commitments by assignment or by operation of §6.23 after the Restatement Effective Date or (E) any Designated Subsidiary Lender having a positive European Commitment, Canadian Revolving Loan Commitment or UK Revolving Loan Commitment if such Designated Subsidiary Lender, or its Affiliate, did not have such positive European Commitment, Canadian Revolving Loan Commitment or UK Revolving Loan Commitment on the Restatement Effective Date or acquire such applicable Commitments by assignment or by operation of §6.23 after the Restatement Effective Date.
(v) Subject to §2.10(b)(iv), each Reallocation shall be made pro rata among the Lenders whose Applicable Commitments are being reallocated from one Applicable Commitment to another, but shall not cause the Applicable Commitments of any other Lenders to change (but will result in a change in Commitment Percentages).
(vi) Subject to §§6.6 and 6.7, in no event shall (A) the Aggregate Domestic Revolving Loan Commitments be reduced to an amount less than the greater of (x) $125,000,000 and (y) the Total Domestic Revolver Exposure, (B) the Aggregate Canadian Revolving Loan Commitments be reduced to an amount less than the Total Canadian Revolver Exposure, (C) the Aggregate European Commitments be reduced to an amount less than the Total European Exposure, (D) [Reserved], (E) the Aggregate UK Revolving Loan Commitments be reduced to an amount less than the Total UK Revolver Exposure or (F) any Aggregate Designated Subsidiary Commitments be reduced to an amount less than the applicable Total Designated Subsidiary Exposure.
(vii) No reallocation shall increase the Designated Subsidiary Commitments to an amount that would exceed the amount permitted by §6.23(a)(iii).
(viii) GWI shall obtain the written consent of each Lender which is proposed and will hold Designated Subsidiary Commitments, which consent of each Lender shall not be unreasonably withheld (it being understood that a Lender shall be deemed to have acted reasonably in withholding its consent if (A) it is unlawful for such Lender to make Loans under this Agreement to the “Designated Subsidiary,” (B) such Lender cannot or has not determined that it is lawful to do so, (C) the making of a Loan to “Designated Subsidiary” might subject such Lender to adverse tax consequences, (D) such Lender is required or has determined that it is prudent to register or file in the jurisdiction of formation or organization of the Designated Subsidiary and it does not wish to do so or (E) that such Lender is restricted by operational or administrative procedures or other applicable internal policies from extending credit under this Agreement to Persons in the jurisdiction in which such Subsidiary is located).
(c) The Applicable Agent shall (i) notify each of the Lenders promptly after receiving any notice of a Reallocation delivered by the Applicable Borrower pursuant to this §2.10 and (ii) promptly upon the effectiveness of any such Reallocation, distribute to each Lender an updated Schedule II hereto, reflecting the changes in the respective Applicable Commitments of the Lenders.
2.11 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 Loans
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made by it, or the participations in Letter of Credit Obligations or in Swingline Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent and any other Applicable Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in Letter of Credit Obligations and applicable Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:
(a) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(b) the provisions of this §2.11 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 Credit Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in §6.16, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in Letter of Credit Obligations or Swingline Loans to any assignee or participant, other than to any Borrower or any Subsidiary thereof (as to which the provisions of this §2.11 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 Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
3. THE TERM LOANS.
3.1 Commitment to Lend.
(a) Subject to the terms and conditions set forth in this Credit Agreement, each Domestic Lender, severally and not jointly, agrees to lend Dollars to GWI on the Restatement Effective Date in the amount of such Lender’s Commitment Percentage set forth on Schedule II (the “Domestic Term Loans”); provided that any Cashless Option Domestic Term Lender as defined in and in accordance with Amendment No. 3 shall not actually make a loan on the Restatement Effective Date but shall be deemed to have exchanged its Domestic Term Loan under and as defined in the Existing Credit Agreement in accordance with Amendment No. 3.
(b) [Reserved].
(c) Subject to the terms and conditions set forth in this Credit Agreement, each UK Lender, severally and not jointly, agrees to lend GBP to the UK Borrower on the Restatement Effective Date in the amount of such Lender’s Commitment Percentage set forth on Schedule II (the “UK Term Loans”); provided that any Cashless Option UK Term Lender as defined in and in accordance with Amendment No. 3 shall not actually make a loan on the Restatement Effective Date but shall be deemed to have exchanged its UK Term Loan under and as defined in the Existing Credit Agreement in accordance with Amendment No. 3.
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3.2 Term Notes.
(a) The Domestic Term Loan made by each Domestic Term Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Domestic Lender shall be conclusive absent manifest error of the amount, Type and Class of the Domestic Term Loans made by the Domestic Lenders to GWI 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 GWI hereunder to pay any amount owing with respect to the applicable Obligations. In the event of any conflict between the accounts and records maintained by any Domestic Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Domestic Lender made through the Administrative Agent, GWI shall execute and deliver to such Lender (through the Administrative Agent) in the case of a Domestic Term Loan, a promissory note in substantially the form of Exhibit B-1 (a “Domestic Term Note”) dated as of the Restatement Effective Date (or such other date on which a Lender may become a party hereto in accordance with §20) and completed with appropriate insertions. Each such Note shall be payable to the order of such Lender and shall evidence such Lender’s applicable Term Loans in addition to such accounts or records. Each such Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b) [Reserved].
(c) [Reserved].
(d) The UK Term Loan made by each UK Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each UK Lender shall be conclusive absent manifest error of the amount, Type and Class of the UK Term Loan made by the UK Lenders to the UK Borrower 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 UK Borrower hereunder to pay any amount owing with respect to the UK Obligations. In the event of any conflict between the accounts and records maintained by any UK Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any UK Lender made through the Administrative Agent, the UK Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note in substantially the form of Exhibit B-4 (a “UK Term Note”), dated as of the Restatement Effective Date (or such other date on which a Lender may become a party hereto in accordance with §20) and completed with appropriate insertions. Each such Note shall be payable to the order of such Lender and shall evidence such Lender’s applicable UK Term Loans in addition to such accounts or records. Each such Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
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3.3 Schedule of Installment Payments of Principal of the Term Loans.
3.3.1. Domestic Term Loan Installment Payments. GWI promises to pay to the Administrative Agent for the account of the Domestic Term Lenders, in accordance with their respective Commitment Percentages, the principal amount of the Domestic Term Loans in quarterly installments as set forth below:
Payment Date |
Principal Amount of Each Quarterly Installment | |
September 30, 2018 – the end of the last quarter prior to the Maturity Date of the Domestic Term Loans |
$17,787,500.00 | |
Maturity Date of the Domestic Term Loans |
The remaining amount of the Domestic Term Loans |
Installments on the Domestic Term Loans shall be due and payable on the last Business Day of each quarter after the Restatement Effective Date, commencing on September 30, 2018, with a final payment on the Maturity Date of the Domestic Term Loans.
3.3.2. [Reserved].
3.3.3. [Reserved].
3.3.4. UK Term Loan Installment Payments. The UK Borrower promises to pay to the Administrative Agent for the account of the UK Lenders holding UK Term Loans, in accordance with their respective Commitment Percentages, the principal amount of the UK Term Loans in quarterly installments as set forth below:
Payment Date |
Principal Amount of Each Quarterly Installment | |
September 30, 2018 – the end of the last quarter prior to the Maturity Date of the UK Term Loans |
£3,411,654.14 | |
Maturity Date of the UK Term Loans |
The remaining amount of the UK Term Loans |
Installments on the UK Term Loan shall be due and payable on the last Business Day of each quarter after the Restatement Effective Date, commencing on September 30, 2018, with a final payment on the Maturity Date of the UK Term Loans.
3.4 Interest on the Term Loans.
(a) Except as otherwise provided in §6.10, the Domestic Term Loans shall bear interest for each day during each Interest Period at a rate per annum equal to (i) the Base Rate plus the Applicable Margin with respect to Base Rate Loans that are Domestic Term Loans as in effect from time to time or (ii) the LIBOR Rate determined for such Interest Period plus the Applicable Margin with respect to LIBOR Rate Loans that are Domestic Term Loans as in effect from time to time. Interest shall be payable on each Interest Payment Date with respect thereto and on the Maturity Date for the Domestic Term Loans. GWI promises to pay interest on the Domestic Term Loans from the Restatement Effective Date until the Maturity Date for Domestic Term Loans in accordance with the provisions of this §3.4.
(b) [Reserved].
(c) [Reserved].
(d) Except as otherwise provided in §6.10, the UK Term Loans shall bear interest for each day during each Interest Period at a rate per annum equal to the Applicable Offered Rate that are UK Term Loans determined for such Interest Period plus the Applicable Margin with respect to Applicable
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Offered Rate Loans that are UK Term Loans as in effect from time to time. Interest shall be payable on each Interest Payment Date with respect thereto and on the Maturity Date for UK Term Loans. The UK Borrower promises to pay interest on the UK Term Loans from the Restatement Effective Date until the Maturity Date for UK Term Loans in accordance with the provisions of this §3.4.
(e) Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.
3.5 Notification of Term Loans.
(a) GWI shall notify the Administrative Agent, such notice to be irrevocable, by 2:00 p.m. (New York time) at least three (3) Business Days prior to the Drawdown Date of the Interest Period for the Domestic Term Loans if all or any portion of the Domestic Term Loans are to bear interest at the LIBOR Rate. With respect to the Domestic Term Loan, the provisions of §2.8 shall apply mutatis mutandis with respect to all or any portion of the Domestic Term Loans so that GWI may have the same interest rate options with respect to all or any portion of the Domestic Term Loans as it would be entitled to with respect to the Domestic Revolving Loans.
(b) [Reserved].
(c) [Reserved].
(d) The UK Borrower shall notify the Administrative Agent (with a copy to Bank of America London Branch), by 2:00 p.m. (New York time) at least three (3) Business Days prior to the Drawdown Date of the UK Term Loans of the Interest Period for the UK Term Loans.
3.6 Interest Periods. No Interest Period relating to any Term Loan or any portion thereof bearing interest at the Applicable Offered Rate shall extend beyond the date on which the regularly scheduled installment payments of the principal of such Term Loan is to be made, unless a portion of such Term Loan at least equal to such installment payments has an Interest Period ending on such date.
4. MANDATORY REPAYMENT OF LOANS.
4.1 Maturity of Loans. The Loans shall be absolutely due and payable on the Maturity Date applicable to such Loans. Each Borrower hereby promises to pay to the Applicable Agent for the pro rata accounts of the Applicable Lenders all of the applicable outstanding Loans, together with any and all accrued and unpaid interest thereon on the Maturity Date applicable to such Loans.
4.2 Mandatory Repayments of Loans.
(a) If at any time for any reason the Total Domestic Revolver Exposure exceeds the Aggregate Domestic Revolving Loan Commitments, the Dollar Equivalent of the Total European Exposure exceeds the Aggregate European Commitments, the Dollar Equivalent of the Total Canadian Revolver Exposure exceeds the Aggregate Canadian Revolving Loan Commitments, the Dollar Equivalent of the Total UK Revolver Exposure exceeds the Aggregate UK Revolving Loan Commitments or the Dollar Equivalent of any Total Designated Subsidiary Exposure exceeds the applicable Aggregate Designated Subsidiary Commitments, then the Applicable Borrower shall immediately pay the amount of such excess to the Applicable Agent for the respective accounts of the Applicable Lenders.
(b) [Reserved].
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(c) If any Loan Party or any of its Restricted Subsidiaries Disposes of any property, including, but not limited to, the Capital Stock of any Subsidiary (other than any Disposition of any property permitted by §10.5.3(a), (b), (f) or (g)), which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds within one day of receipt thereof by such Person (such prepayments pursuant to this clause (c) to be applied as set forth in clause (f) below).
(d) [Reserved].
(e) Upon the incurrence or issuance by any Loan Party or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to §10.1 (other than Credit Agreement Refinancing Indebtedness)), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within one day of receipt thereof by such Loan Party or such Restricted Subsidiary (such prepayments pursuant to this clause (e) to be applied as set forth in clause (f) below).
(f) Each prepayment of Term Loans pursuant to the foregoing provisions of this §4.2 shall be accompanied by any applicable breakage costs incurred pursuant to §6.9 and applied ratably to all Classes of Term Loans and to the principal repayment installments thereof in direct order of maturity for the first four principal installments after the repayment and thereafter pro rata to the remaining principal payments.
4.3 Optional Repayments of Loans.
4.3.1. Domestic Revolving Loans. The Domestic Borrowers shall have the right, at their election, to repay the outstanding amount of the Domestic Revolving Loans, as a whole or in part, at any time without penalty or premium, provided that any full or partial prepayment of the outstanding amount of any Domestic Revolving Loan that is a LIBOR Rate Loan pursuant to this §4.3.1 made on a day other than the last day of the Interest Period relating thereto shall be subject to compliance with §6.9. The Domestic Borrowers shall give the Administrative Agent, no later than 10:00 a.m., New York time, at least (a) one (1) Business Day prior written notice (in a form reasonably acceptable to the Administrative Agent) of any proposed prepayment of a Domestic Revolving Loan that is a Base Rate Loan pursuant to this §4.3.1, and (b) two (2) Business Days prior written notice of any proposed prepayment of a Domestic Revolving Loan that is a LIBOR Rate Loan pursuant to this §4.3.1, in each case specifying the proposed date of prepayment of such Domestic Revolving Loan and the principal amount to be paid. Each such partial prepayment of the Domestic Revolving Loan shall be in an integral multiple of $500,000 and shall be applied by the Administrative Agent, in the absence of instruction by the Domestic Borrowers, first to the principal of Base Rate Loans and then to the principal of LIBOR Rate Loans. Each partial prepayment shall be allocated among the Domestic Lenders in accordance with such Lender’s Commitment Percentage.
4.3.2. European Loans. The European Borrowers shall have the right, at its election, to repay the outstanding amount of the European Loans, as a whole or in part, at any time without penalty or premium, provided that any full or partial prepayment of the outstanding amount of any European Loan pursuant to this §4.3.2 made on a day other than the last day of the Interest Period relating thereto shall be subject to compliance with §6.9. The European Borrowers shall give the European Agent, no later than 12:00 noon, London time, at least five (5) Business Days prior written notice (in a form reasonably acceptable to the Administrative Agent) of any proposed prepayment of such European Loan pursuant to this §4.3.2, specifying the proposed date of prepayment of such European Loan and the principal amount to be paid. Each such partial prepayment of the European Loan shall be in an integral multiple of EUR500,000. Each partial prepayment shall be allocated among the European Lenders in accordance with such Lender’s Commitment Percentage.
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4.3.3. Canadian Revolving Loans. The Canadian Borrower shall have the right, at its election, to repay the outstanding amount of the Canadian Revolving Loans, as a whole or in part, at any time without penalty or premium, provided that any full or partial prepayment of the outstanding amount of any Canadian Revolving Loan pursuant to this §4.3.3 made on a day other than the last day of the Interest Period relating thereto shall be subject to compliance with §6.9. The Canadian Borrower shall give the Administrative Agent, no later than 12:00 noon, New York time, at least two (2) Business Days prior written notice (in a form reasonably acceptable to the Administrative Agent) of any proposed prepayment of such Canadian Revolving Loan pursuant to this §4.3.3, specifying the proposed date of prepayment of such Canadian Revolving Loan and the principal amount to be paid. Each such partial prepayment of the Canadian Revolving Loan shall be in an integral multiple of Cdn. $500,000. Each partial prepayment shall be allocated among the Canadian Lenders in accordance with such Lender’s Commitment Percentage.
4.3.4. [Reserved].
4.3.5. Domestic Term Loans. GWI shall have the right at any time to prepay the Domestic Term Loans on or before the Maturity Date of the Domestic Term Loans, as a whole, or in part, upon not less than two (2) Business Days prior written notice (in a form reasonably acceptable to the Administrative Agent) to the Administrative Agent, without premium or penalty, provided that subject to compliance with §6.9, (a) each partial prepayment shall be in an integral multiple of $500,000, (b) any full or partial portion of the Domestic Term Loans bearing interest at the LIBOR Rate may be prepaid pursuant to this §4.3.5 on a day other than the last day of the Interest Period relating thereto, and (c) each partial prepayment shall be allocated among the Domestic Term Lenders in accordance with such Lender’s Commitment Percentage. Any prepayment of principal of the Domestic Term Loans shall include all interest accrued to the date of prepayment and shall be applied as directed by GWI. No amount repaid with respect to the Domestic Term Loans may be reborrowed.
4.3.6. [Reserved].
4.3.7. [Reserved].
4.3.8. UK Revolving Loans. The UK Borrower shall have the right, at its election, to repay the outstanding amount of the UK Revolving Loans, as a whole or in part, at any time without penalty or premium, provided that any full or partial prepayment of the outstanding amount of any UK Revolving Loan pursuant to this §4.3.8 made on a day other than the last day of the Interest Period relating thereto shall be subject to compliance with §6.9. The UK Borrower shall give the Administrative Agent (with a copy to Bank of America), no later than 12:00 noon, New York time, at least five (5) Business Days prior written notice (in a form reasonably acceptable to the Administrative Agent) of any proposed prepayment of such UK Revolving Loan pursuant to this §4.3.8, specifying the proposed date of prepayment of such UK Revolving Loan and the principal amount to be paid. Each such partial prepayment of the UK Revolving Loan shall be in an integral multiple of £500,000. Each partial prepayment shall be allocated among the UK Lenders in accordance with such Lender’s Commitment Percentage.
4.3.9. UK Term Loans. The UK Borrower shall have the right at any time to prepay the UK Term Loans on or before the Maturity Date of the UK Term Loans, as a whole, or in part, upon not less than five (5) Business Days prior written notice (in a form reasonably acceptable to the Administrative Agent) to the Administrative Agent (with a copy to the UK Agent), without premium or penalty, provided that subject to compliance with §6.9, (a) each partial prepayment shall be in an integral multiple of
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£500,000, (b) any full or partial portion of the UK Term Loans bearing interest at the Applicable Offered Rate may be prepaid pursuant to this §4.3.9 on a day other than the last day of the Interest Period relating thereto, and (c) each partial prepayment shall be allocated among the UK Lenders in accordance with such Lender’s Commitment Percentage. Any prepayment of principal of the UK Term Loans shall include all interest accrued to the date of prepayment and shall be applied as directed by GWI. No amount repaid with respect to the UK Term Loans may be reborrowed.
5. LETTERS OF CREDIT.
5.1 Letter of Credit Commitments.
5.1.1. Commitment to Issue Letters of Credit.
(a) Subject to the terms and conditions hereof and the execution and delivery by GWI of a letter of credit application on the Issuing Lender’s customary form (a “Letter of Credit Application”), the Issuing Lender on behalf of the Applicable Lenders and in reliance upon the agreement of the Applicable Lenders set forth in §5.1.4 and upon the representations and warranties of GWI contained herein, agrees, in its individual capacity, to issue and extend for the account of GWI (to support obligations of GWI, any other Borrower or any Subsidiaries of GWI; provided that unless the Aus Qualified Intercompany Loan is outstanding, no letter of credit shall be issued for the account of the Aus JV or its Subsidiaries) one or more standby or documentary letters of credit (individually, a “Letter of Credit”), in such form as may be requested from time to time by GWI and agreed to by the Issuing Lender; provided, however, that, after giving effect to such request, (i) the outstanding Letter of Credit Obligations to support obligations of the Domestic Borrowers and Subsidiaries organized under the laws of any political subdivision of the United States do not exceed $30,000,000, (ii) the outstanding Letter of Credit Obligations to support obligations of the European Borrowers and Subsidiaries organized or incorporated under the laws of the European Union or any other country in Europe do not exceed $15,000,000, (iii) the outstanding Letter of Credit Obligations to support obligations of the Canadian Borrower and Subsidiaries organized under the laws of Canada or any province thereof do not exceed $15,000,000, (iv) [Reserved], (v) the outstanding Letter of Credit Obligations to support obligations of the UK Borrower and Subsidiaries organized or incorporated under the laws of England and Wales do not exceed $25,000,000, (vi) the total outstanding Letter of Credit Obligations do not exceed $45,000,000, and (vii) the Total Domestic Revolver Exposure shall not exceed the Aggregate Domestic Revolving Loan Commitments. Notwithstanding any other provisions of this Credit Agreement, the Issuing Lender shall not issue or extend a Letter of Credit after it has received notice from any Lender or any Agent that a Default or Event of Default has occurred and stating that no Letters of Credit are to be issued or extended until such Default or Event of Default has been cured or waived in accordance with the provisions of this Credit Agreement.
(b) The Issuing Lender shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing such Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Lender with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the date hereof and which the Issuing Lender in good xxxxx xxxxx material to it;
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(ii) the issuance of such Letter of Credit would violate (A) any laws or (B) one or more policies of the Issuing Lender applicable to letters of credit generally; provided that such policies have been disclosed to GWI prior to its request for the issuance of such Letter of Credit;
(iii) except as otherwise agreed by the Issuing Lender, such Letter of Credit is in an initial face amount less than $50,000;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars, Euro, Canadian Dollars, GBP or any other Alternative Currency, as the case may be;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(vi) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Lender’s actual or potential Fronting Exposure (after giving effect to §6.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Letter of Credit Obligations as to which the Issuing Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(c) The Issuing Lender shall act on behalf of the Applicable Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Lender shall have all of the benefits and immunities (A) provided to the Agents in §16 with respect to any acts taken or omissions suffered by the Issuing Lender 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 “Agents” as used in §16 included the Issuing Lender with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Lender.
5.1.2. Letter of Credit Applications.
(a) Each Letter of Credit shall be issued upon the request of GWI (for itself or on behalf of any other Borrower or Subsidiary) delivered to the Issuing Lender (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by an authorized officer of GWI. Such Letter of Credit Application must be received by the Issuing Lender and the Administrative Agent not later than 11:00 a.m. (New York time) at least two Business Days (or such later date and time as the Administrative Agent and the Issuing Lender may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the Issuing Lender: (i) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (ii) the amount thereof; (iii) the expiry date thereof; (iv) the name and address of the beneficiary thereof; (v) the documents to be presented by such beneficiary in case of any drawing thereunder; (vi) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (vii) such other matters as the Issuing Lender may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the Issuing Lender (w) the Letter of Credit to be amended; (x) the proposed date of amendment thereof (which shall be a Business Day); (y) the nature of the proposed amendment; and (z) such other matters as the Issuing Lender may require. Additionally, GWI shall furnish to the Issuing Lender and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Issuing Lender or the Administrative Agent may require. Unless
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the Issuing Lender has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions in §13 shall not then be satisfied, then, subject to the terms and conditions hereof, the Issuing Lender shall, on the requested date, issue a Letter of Credit for the account of GWI (to support obligations of GWI, any other Borrower or any Subsidiaries of GWI) or enter into the applicable amendment, as the case may be, in each case in accordance with the Issuing Lender’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Applicable Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Issuing Lender a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Commitment Percentage times the amount of such Letter of Credit.
(b) If GWI so requests in any applicable Letter of Credit Application, the Issuing Lender may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Lender 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 Issuing Lender, GWI shall not be required to make a specific request to the Issuing Lender for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Lender to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the Issuing Lender shall not permit any such extension if (A) the Issuing Lender has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions §5.1.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or GWI that one or more of the applicable conditions specified in §13 is not then satisfied, and in each such case directing the Issuing Lender not to permit such extension.
(c) Promptly after receipt of any Letter of Credit Application, the Issuing Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from GWI and, if not, the Issuing Lender will provide the Administrative Agent with a copy thereof. Unless the Issuing Lender has received written notice from any Lender, any 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 §13 shall not then be satisfied, then, subject to the terms and conditions hereof, the Issuing Lender shall, on the requested date, issue a Letter of Credit for the account of GWI (to support obligations of GWI, any other Borrower or any Subsidiaries of GWI) or enter into the applicable amendment, as the case may be, in each case in accordance with the Issuing Lender’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Applicable Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Issuing Lender a risk participation in such Letter of Credit in an amount equal to the product of Lender’s applicable Commitment Percentage times the amount of such Letter of Credit.
5.1.3. Terms of Letters of Credit. Each Letter of Credit issued or extended hereunder shall, among other things, (a) subject to §5.1.2(b) and clause (b) hereof, have a term of not more than one (1) year from the date of issuance or extension thereof, and (b) have an expiry date no later than the date which is seven (7) days prior to the Maturity Date. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
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5.1.4. Reimbursement Obligations of Lenders. Each Applicable Lender severally agrees that it shall be absolutely liable, without regard to the occurrence of any Default or Event of Default or any other condition precedent whatsoever, to the extent of such Lender’s applicable Commitment Percentage, to reimburse the Issuing Lender in Dollars on demand for the amount of each draft paid by the Issuing Lender under each applicable Letter of Credit to the extent that such amount is not reimbursed by GWI pursuant to §5.3 (such agreement for a Lender being called herein the “Letter of Credit Participation” of such Lender).
5.1.5. Participations of Lenders. Each such payment made by a Lender shall be treated as the purchase by such Lender of a participating interest in GWI’s Reimbursement Obligation under §5.3 in an amount equal to such payment. Each Applicable Lender shall share in accordance with its participating interest in any interest which accrues pursuant to §5.3.
5.1.6. Provisions Related to Incremental Revolving Credit Commitments and Extended Revolving Credit Commitments. If the maturity date in respect of any tranche of Revolving Loan Commitments occurs prior to the expiration of any Letter of Credit, then (i) if one or more other tranches of Revolving Loan Commitments in respect of which the maturity date shall not have occurred are then in effect, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Lenders to purchase participations therein and to make Revolving Loans and payments in respect thereof pursuant to §§5.1.4 and 5.1.5) under (and ratably participated in by Lenders pursuant to) the Revolving Loan Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolving Loan Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding clause (i), the Borrowers shall Cash Collateralize any such Letter of Credit in accordance with §6.16. Commencing with the maturity date of any tranche of Revolving Loan Commitments, the sublimit for Letters of Credit shall be agreed with the Lenders under the extended, refinanced or incremental tranches.
5.2 [Reserved].
5.3 Letter of Credit Payments.
(a) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the Issuing Lender shall notify GWI and the Administrative Agent thereof. GWI shall reimburse the Issuing Lender through the Administrative Agent in an amount equal to the amount of such drawing not later than (A) 1:00 p.m. (New York time) on the date of any payment by the Issuing Lender under a Letter of Credit (each such date, an “Honor Date”), to the extent the Administrative Agent has delivered notice to GWI of such payment prior to 11:00 a.m. (New York time) on the Honor Date, or (B) 1:00 p.m. (New York time) on the Business Day immediately following the day that the Administrative Agent has delivered notice to GWI, to the extent such notice is not delivered to GWI prior to 11:00 a.m. (New York time) on the Honor Date. In the case of a Letter of Credit denominated in an Alternative Currency, GWI shall reimburse the Issuing Lender in such Alternative Currency, unless (A) the Issuing Lender (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, GWI shall have notified the Issuing Lender promptly following receipt of the notice of drawing that GWI will reimburse the Issuing Lender in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the Issuing Lender shall notify GWI of the Dollar Equivalent of the amount of the drawing promptly following the determination
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thereof. If GWI fails to so reimburse the Issuing Lender by the time set forth in the second sentence of this §5.3(a) (the “Letter of Credit Borrowing Date”), the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the Unpaid Reimbursement Obligation, which amount, for the avoidance of doubt, shall include interest on such Unpaid Reimbursement Obligation commencing on the Honor Date, and the amount of such Lender’s Commitment Percentage thereof. In such event, GWI shall be deemed to have requested a Base Rate Loan to be disbursed on the Letter of Credit Borrowing Date in an amount equal to the Unpaid Reimbursement Obligation, without regard to the minimum and multiples specified in §2.6 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Total Commitment and the conditions set forth in §13 (other than the delivery of a Loan Request). Any notice given by the Issuing Lender or the Administrative Agent pursuant to this §5.3(a) 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.
(b) Each Lender shall upon any notice pursuant to §5.3(a) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the Issuing Lender at the Administrative Agent’s Office in an amount equal to its Commitment Percentage of the Unpaid Reimbursement Obligation not later than 2:00 p.m. (New York time) on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of §5.3(c), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to GWI in such amount. The Administrative Agent shall remit the funds so received to the Issuing Lender.
(c) With respect to any Unpaid Reimbursement Obligation that is not fully refinanced by a Base Rate Loan because the conditions set forth in §13 cannot be satisfied or for any other reason, GWI shall be deemed to have incurred from the Issuing Lender a Letter of Credit Borrowing in the amount of the Unpaid Reimbursement Obligation that is not so refinanced, which Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the default rate specified in §6.10. In such event, each Lender’s payment to the Administrative Agent for the account of the Issuing Lender pursuant to this §5.3 shall be deemed payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a Letter of Credit Advance from such Lender in satisfaction of its participation obligation under this §5.3.
(d) Until each Lender funds its Base Rate Loan or Letter of Credit Advance pursuant to this §5.3 to reimburse the Issuing Lender for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Commitment Percentage of such amount shall be solely for the account of the Issuing Lender.
(e) Each Lender’s obligation to make Base Rate Loans or Letter of Credit Advance to reimburse the Issuing Lender for amounts drawn under Letters of Credit, as contemplated by this §5.3, shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Issuing Lender, GWI or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of 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 Base Rate Loans pursuant to this §5.3 is subject to the conditions set forth in §13 (other than delivery by GWI of a Loan Request). No such making of a Letter of Credit Advance shall relieve or otherwise impair the obligation of GWI to reimburse the Issuing Lender for the amount of any payment made by the Issuing Lender under any Letter of Credit, together with interest as provided herein.
(f) If any Lender fails to make available to the Administrative Agent for the account of the Issuing Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this §5.3 by the time specified in §5.3(b), then, without limiting the other provisions of this Credit
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Agreement, the Issuing Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Issuing Lender at a rate per annum equal to the greater of the Federal Funds Rate (or the Bank of Canada Rate in the case of amounts owed to the Canadian Agent) and a rate determined by the Issuing Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Issuing Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Base Rate Loan included in the relevant borrowing or Letter of Credit Advance in respect of the relevant Letter of Credit Borrowing, as the case may be. A certificate of the Issuing Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (f) shall be conclusive absent manifest error.
5.4 Obligations Absolute. The obligation of GWI to reimburse the Issuing Lender for each drawing under each Letter of Credit issued in respect of GWI or any of its Subsidiaries and to repay each Letter of Credit Borrowing with respect thereto shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Credit Agreement under all circumstances (other than in the case of gross negligence or willful misconduct of the Issuing Lender), including the following:
(a) any lack of validity or enforceability of such Letter of Credit, this Credit Agreement, or any other Loan Document;
(b) the existence of any claim, counterclaim, setoff, defense or other right that GWI may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuing Lender or any other Person, whether in connection with this Credit Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(c) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or
(d) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; any payment by the Issuing Lender under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the Issuing Lender under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver, administrator or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
(e) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, GWI.
GWI 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 GWI’s instructions or other irregularity, GWI will immediately notify the Issuing Lender. GWI shall be conclusively deemed to have waived any such claim against the Issuing Lender and its correspondents unless such notice is given as aforesaid.
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5.5 Role of Issuing Lender. Each Applicable Lender and GWI agree that, in paying any drawing under a Letter of Credit, the Issuing Lender shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Issuing Lender, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the Issuing Lender shall be liable to any Applicable Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Applicable Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. GWI 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 GWI’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Issuing Lender, the Agents, any of their respective Related Parties nor any correspondent, participant or assignee of the Issuing Lender, shall be liable or responsible for any of the matters described in clauses (a) through (e) of §5.4; provided, however, that anything in such clauses to the contrary notwithstanding, GWI may have a claim against the Issuing Lender, and the Issuing Lender may be liable to GWI, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by GWI which GWI proves were caused by the Issuing Lender’s willful misconduct or gross negligence or the Issuing Lender’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the Issuing Lender may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the Issuing Lender shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
5.6 Addition of an Issuing Lender. The Borrower may add an Issuing Lender with the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and with the agreement of such new Issuing Lender, whereupon such new Issuing Lender shall be granted the rights, powers and duties of an Issuing Lender hereunder, and the term “Issuing Lender” shall include such new Issuing Lender upon the effectiveness of such appointment or such other date as may be agreed by the Borrower and such Issuing Lender. The acceptance of any appointment as an Issuing Lender hereunder shall be evidenced by an agreement entered into by such new Issuing Lender, in a form reasonably satisfactory to the Borrower and the Administrative Agent, and, from and after the effective date of such agreement, such new issuer of Letters of Credit shall become an “Issuing Lender” hereunder.
5.7 Applicability of International Standby Practices and Uniform Customs. Unless otherwise expressly agreed by the Issuing Lender and GWI when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the International Standby Practices 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.
5.8 Letter of Credit Amounts. Unless otherwise specified herein the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
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5.9 Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, GWI shall be obligated to reimburse the Issuing Lender hereunder for any and all drawings under such Letter of Credit. GWI hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of GWI, and GWI’s business derives substantial benefits from the businesses of such Subsidiaries.
5.10 Letter of Credit Fee. GWI shall, on the first day of each calendar quarter for the immediately preceding calendar quarter, pay a fee (in each case, a “Letter of Credit Fee”) to the Administrative Agent in respect of each Letter of Credit at a rate per annum equal to the Applicable Margin with respect to Letters of Credit multiplied by the face amount of such Letter of Credit. Such Letter of Credit Fee shall be allocated pro rata (according to the applicable Commitment Percentages) to each Applicable Lender. In addition, GWI shall pay to the Administrative Agent, for the account of the Issuing Lender, (a) a fee at a rate per annum equal to one-eighth of one percent (0.125%) computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit (to be determined in accordance with §5.8) on a quarterly basis in arrears, such fee shall be due and payable on the first 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, and (b) standard issuance, extension, processing, negotiating, amendment and administration fees, as determined in accordance with the Issuing Lender’s or the Administrative Agent’s customary fees and charges for similar facilities, such fees to be payable at such time or times as such charges are customarily made by the Issuing Lender; provided, however, any Letter of Credit Fees or fees payable pursuant to clauses (a) and (b) of this §5.10 otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the Issuing Lender pursuant to this §5.10 shall be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward adjustments in their respective Commitment Percentages allocable to such Letter of Credit pursuant to §6.17(a)(iv), with the balance of such fee, if any, payable to the Issuing Lender for its own account.
5.11 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.
5.12 Letter of Credit Reports. For so long as any Letter of Credit issued by an Issuing Lender (other than Bank of America) is outstanding, such Issuing Lender shall deliver to the Administrative Agent a report in the form of Exhibit P hereto (appropriately completed with the information for every outstanding Letter of Credit issued by such Issuing Lender) on the last Business Day of each calendar month and on each date there is a change to the information set forth on such report. The Administrative Agent shall deliver to the Lenders on a quarterly basis a report of all outstanding Letters of Credit.
6. CERTAIN GENERAL PROVISIONS.
6.1 Fees. In addition to the fees described in §2.2, the Borrowers shall pay (x) to MLPF&S, X.X. Xxxxxx Securities LLC, Citigroup Global Markets, Inc. and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letter and (y) 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.
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6.2 Funds for Payments.
6.2.1. Payments to Agents.
(a) The Administrative Agent shall debit an account of the Domestic Borrowers with the Administrative Agent for all (i) interest payments when due as provided in §§2.5 and 3.4 with respect to the Domestic Notes or otherwise due hereunder, (ii) Domestic Revolving Loan Commitment Fees when due as provided in §2.2, and (iii) Letter of Credit Fees when due as provided in §5.10. The failure of the Administrative Agent to debit such account as provided herein with respect to any such payments shall not constitute a waiver of any payment due hereunder. All payments of principal, Reimbursement Obligations and any other amounts due hereunder or under any of the other Loan Documents in respect of the Domestic Notes shall be made to the Administrative Agent, for the respective accounts of the Domestic Lenders and the Administrative Agent, at the Administrative Agent’s Office, in each case in immediately available funds without setoff or counterclaim or other deduction. All payments received by the Administrative Agent after 3:00 p.m. New York time shall 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 Domestic Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b) The Canadian Agent shall debit an account of the Canadian Borrower with the Canadian Agent for all (i) interest payments when due as provided in §§2.5 and 3.4 with respect to the Canadian Revolving Notes or otherwise due hereunder, (ii) Canadian Revolving Loan Commitment Fees when due as provided in §2.2, and (iii) Letter of Credit Fees when due as provided in §5.10. The failure of the Canadian Agent to debit such account as provided herein with respect to any such payments shall not constitute a waiver of any payment due hereunder. All payments of principal and any other amounts due hereunder or under any of the other Loan Documents in respect to the Canadian Revolving Notes shall be made to the Canadian Agent, for the respective accounts of the Canadian Lenders and the Canadian Agent, at the Canadian Agent’s Office, in each case in immediately available funds. All payments received by the Canadian Agent after 3:00 p.m. New York time shall 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 the Canadian 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.
(c) The European Agent shall debit an account of the European Borrowers with the European Agent for all (i) interest payments when due as provided in §2.5 with respect to the European Notes or otherwise due hereunder (ii) European Commitment Fees when due as provided in §2.2, and (iii) Letter of Credit Fees when due as provided in §5.10. The failure of the European Agent to debit such account as provided herein with respect to any such payments shall not constitute a waiver of any payment due hereunder. All payments of principal and any other amounts due hereunder or under any of the other Loan Documents in respect to the European Notes shall be made to the European Agent, for the respective accounts of the European Lenders and the European Agent, at the European Agent’s Office, in each case in immediately available funds. All payments received by the European Agent after 3:00 p.m., London time, shall 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 the European Borrowers 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.
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(d) [Reserved].
(e) The UK Agent shall debit an account of the UK Borrower with the UK Agent for all (i) interest payments when due as provided in §§2.5 and 3.4 with respect to the UK Revolving Notes or otherwise due hereunder, (ii) UK Revolving Loan Commitment Fees when due as provided in §2.2, and (iii) Letter of Credit Fees when due as provided in §5.10. The failure of the UK Agent to debit such account as provided herein with respect to any such payments shall not constitute a waiver of any payment due hereunder. All payments of principal and any other amounts due hereunder or under any of the other Loan Documents in respect to the UK Revolving Notes shall be made to the UK Agent, for the respective accounts of the UK Lenders and the UK Agent, at the UK Agent’s Office, in each case in immediately available funds. All payments received by the UK Agent after 3:00 p.m. London time shall 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 the UK 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.
6.2.2. Currency Matters.
(a) Subject to §5.3(a), Dollars are the currency of account and payment for each and every sum at any time due from the Domestic Borrowers hereunder.
(b) Subject to §5.3(a), Canadian Dollars, Euro, Euro, GBP and any applicable Designated Subsidiary Alternative Currency are the currency of account and payment for each and every sum at any time due from the Canadian Borrower, European Borrowers, UK Borrower and, with respect to each applicable Designated Subsidiary Alternative Currency, each applicable Designated Subsidiary, respectively, hereunder; provided that:
(i) each payment in respect of costs, expenses and indemnities shall be made in the currency in which the same were incurred; and
(ii) any amount expressed to be payable in a currency other than Canadian Dollars, Euro or GBP or any other Alternative Currency, as applicable, shall be paid in that other currency.
(c) No payment to any Agent or any Lender (whether under any judgment or court order or otherwise) shall discharge the obligation or liability in respect of which it was made unless and until such Agent or such other Lender shall have received payment in full in the currency in which such obligation or liability was incurred, and to the extent that the amount of any such payment shall, on actual conversion into such currency, fall short of such obligation or liability actual or contingent expressed in that currency, the Borrowers shall indemnify and reimburse such Agent or such other Lender, as the case may be, with respect to the amount of the shortfall, with such indemnity surviving the termination of this Credit Agreement and any legal proceeding, judgment or court order pursuant to which the original payment was made which resulted in the shortfall.
(d) If, for the purpose of obtaining judgment in any court or obtaining an order enforcing a judgment, it becomes necessary to convert any amount due under this Credit Agreement in Dollars or in any other currency (hereinafter in this §6.2.2 called the “first currency”) into any other currency (hereinafter in this §6.2.2 called the “second currency”), then the conversion shall be made at the Spot Rate at the Applicable Agent’s close of business on the Business Day next preceding the day on which the final judgment is given or (as the case may be) the final order is made. Any payment made to any Agent or any Lender pursuant to this Credit Agreement in the second currency shall constitute a discharge of the
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obligations of the Borrowers to pay to such Agent and the Lenders any amount originally due to such Agent and the Lenders in the first currency under this Credit Agreement only to the extent of the amount of the first currency which such Agent and each of the Lenders is able, on the date of the receipt by it of such payment in any second currency, to purchase, in accordance with such Agent’s and such Lender’s normal banking procedures, with the amount of such second currency so received. If the amount of the first currency falls short of the amount originally due to any Agent and the Lenders in the first currency under this Credit Agreement, the Borrowers hereby jointly and severally agree that they will indemnify the Agents and each of the Lenders against and save Agents and each of the Lenders harmless from any shortfall so arising. This indemnity shall constitute a joint and several obligation of the Borrowers separate and independent from the other obligations contained in this Credit Agreement, shall give rise to a separate and independent cause of action and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum or sums in respect of amounts due to any Agent or any Lender under this Credit Agreement or under any such judgment or order. Any such shortfall shall be deemed to constitute a loss suffered by such Agent and each such Lender, as the case may be, and the Borrowers shall not be entitled to require any proof or evidence of any actual loss. The covenant contained in this §6.2.2 shall survive the payment in full of all of the other obligations of the Borrowers under this Credit Agreement.
(e) For all purposes of this Credit Agreement, the amount in one currency which shall be equivalent on any particular date to a specified amount in another currency shall be that amount (as conclusively ascertained by the Applicable Agent) in the first currency which is or could be purchased by the Applicable Agent (in accordance with its normal banking practices) with such specified amount in the second currency in any recognized Eurocurrency Interbank Market selected by the Applicable Agent in good faith for delivery on such date at the Spot Rate on such date.
6.3 Computations.
(a) All computations of interest for Applicable Floating Rate Loans (including Applicable Floating Rate Loans determined by reference to the Applicable Offered Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be based on a year of 365 or 366 days, and, as the case may be, paid for the actual number of days elapsed, or, in the case of interest in respect of Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice. Except as otherwise provided in the definition of the term “Interest Period” with respect to Applicable Offered Rate Loans, whenever a payment hereunder or under any of the other Loan Documents becomes due on a day that is not a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and interest shall accrue during such extension. 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 §6.2.1, bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. The outstanding amount of the Loans as reflected on the applicable Note Records from time to time shall be considered correct and binding on the Applicable Borrower unless within five (5) Business Days after receipt of any notice by the Applicable Agent or Applicable Lender of such outstanding amount, such Agent or such Lender shall notify the Applicable Borrower to the contrary. All interest will be calculated using the nominal rate method and not the effective rate method and the deemed reinvestment principle shall not apply to such calculations.
(b) For the purposes of the Interest Act (Canada), (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
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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. The Canadian Borrower and each Canadian Guarantor hereby irrevocably agrees not to plead or assert, whether by way of defense or otherwise, in any proceeding relating to this Agreement and the other Loan Documents, that the interest payable under this Agreement and the calculation thereof has not been adequately disclosed to it, whether pursuant to section 4 of the Interest Act (Canada) or any other applicable law or legal principle.
6.4 Inability to Determine Applicable Offered Rate.
(a) (i) If the Required Lenders determine that for any reason in connection with any request for an Applicable Offered Rate Loan or a conversion to or continuation thereof that (a) deposits (whether in Dollars, Canadian Dollars, Euro, GBP or any other 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 Applicable Offered Rate Loan, (b) adequate and reasonable means do not exist for determining the Applicable Offered Rate for any requested Interest Period with respect to a proposed Applicable Offered Rate Loan (whether in Dollars, Canadian Dollars, Euro, GBP or any other Alternative Currency) or in connection with an existing or proposed Base Rate Loan, or (c) the Applicable Offered Rate for any requested Interest Period with respect to a proposed Applicable Offered Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan or (ii) if no LIBOR Successor Rate has been determined and the circumstances under clause (b)(i) below exists or the Scheduled Unavailability Date has occurred (as applicable), in each case of clauses (a)(i) or (a)(ii) hereof, the Applicable Agent will promptly so notify the Borrowers and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Applicable Offered Rate Loans shall be suspended, and (y) in the event of a determination described in the preceding sentence with respect to the Applicable Offered Rate component of the Base Rate, the utilization of the Applicable Offered Rate component in determining the Base Rate shall be suspended, in each case until the Applicable Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrowers may revoke any pending request for a borrowing of, conversion to or continuation of Applicable Offered Rate Loans or, failing that, will be deemed to have converted such request into a request for a borrowing of Applicable Floating Rate Loans in the amount specified therein.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period, including, without limitation, because the LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary, or
(ii) the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”), or
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(iii) syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,
then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment.
6.5 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Applicable Offered Rate, or to determine or charge interest rates based upon the Applicable Offered 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 in the London interbank market, then, on notice thereof by such Lender to the Borrowers through the Applicable Agent, (i) any obligation of such Lender to make or continue Applicable Offered Rate Loans or to convert Applicable Floating Rate Loans to Applicable Offered Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Applicable Offered Rate Loans the interest rate on which is determined by reference to the Applicable Offered Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Applicable Agent without reference to the Applicable Offered Rate component of the Base Rate, in each case until such Lender notifies the Applicable Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Applicable Agent), prepay or, if applicable, convert all Applicable Offered Rate Loans of such Lender to Applicable Floating Rate Loans (the interest rate on which Applicable Floating Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Applicable Agent without reference to the Applicable Offered Rate component of the Applicable Floating Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Applicable Offered Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Applicable Offered Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Applicable Offered Rate, the Applicable Agent shall during the period of such suspension compute the Applicable Floating Rate applicable to such Lender without reference to the Applicable Offered Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Applicable Offered Rate. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
6.6 Additional Costs, Etc. If any Change in Law shall:
(a) 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 any reserve requirement reflected in the Applicable Offered Rate) or the Issuing Lender;
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(b) subject any Lender, any Swingline Lender or the Issuing Lender to any Tax of any kind whatsoever with respect to this Credit Agreement, any Letter of Credit, any participation in a Letter of Credit or any Applicable Offered Rate Loan made by it (except for Indemnified Taxes or Other Taxes covered by §6.12 and any Excluded Taxes);
(c) impose on any Lender or the Issuing Lender or the London interbank market any other condition, cost or expense affecting this Credit Agreement or Applicable Offered Rate Loans made by such Lender or any Letter of Credit or participation therein (other than Taxes); or
(d) result in the failure of the Mandatory Cost, as calculated hereunder, to represent the cost to any Lender of complying with the requirements of the Bank of England and/or the Financial Services Authority or the European Central Bank in relation to its making, funding or maintaining Applicable Offered Rate Loans;
and the result of any of the foregoing shall be to increase the cost to such Lender by an amount that such Lender deems to be material, of making or maintaining any Loan the interest on which is determined by reference to the Applicable Offered Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the Issuing Lender by an amount that such Lender or the Issuing Lender, as the case may be, deems to be material, of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the Issuing Lender by an amount that such Lender or the Issuing Lender, as the case may be, deems to be material, hereunder (whether of principal, interest or any other amount) then, and in each such case, the Applicable Borrower will, within ten (10) Business Days after such Borrower’s receipt of a written request (setting forth a reasonably detailed explanation as to the reason for any additional amounts payable pursuant to this §6.6 and certifying that at such time such Lender has generally assessed such amounts on a non-discriminatory basis against borrowers under agreements having provisions similar to this §6.6) made by such Lender or such Agent at any time and from time to time and as often as the occasion therefor may arise, pay to such Lender or such Agent such additional amounts as will be sufficient to compensate such Lender or such Agent for such additional cost, reduction, payment or foregone interest or Reimbursement Obligation or other sum; provided that the Applicable Borrower shall not be required to compensate a Lender pursuant to this §6.6 for any amounts incurred more than six months prior to the date that such Lender notifies such Borrower of such Lender’s intention to claim compensation therefor; and provided further that, if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to include the period of such retroactive effect. With respect to any existing Lender as of the date a Person becomes a Designated Subsidiary hereunder, if the cost to any such Lender of making or maintaining any Loan to or of issuing or maintaining any Letter of Credit for the account of a Designated Subsidiary is increased, or the amount of any sum received or receivable by any such Lender (or its applicable Lending Office) is reduced by an amount deemed by such Lender to be material, by reason of the fact such Designated Subsidiary is incorporated, organized, engaged in business or otherwise resides for the applicable Tax or other purposes in, a jurisdiction outside the United States, then such additional cost or reduction shall be deemed for purposes of this §6.6 to be the result of a Change in Law occurring on the date such Person becomes a Designated Subsidiary hereunder.
6.7 Capital Adequacy. If any Lender or the Issuing Lender determines that any Change in Law affecting such Lender or the Issuing Lender or any Lending Office of such Lender or such Lender’s or the Issuing Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Lender’s capital or on the capital of such Lender’s or the Issuing Lender’s holding company, if any, as a consequence of this Credit Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Lender, to a level below that which
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such Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Lender’s policies and the policies of such Lender’s or the Issuing Lender’s holding company with respect to capital liquidity and adequacy), by an amount deemed by such Lender or the Issuing Lender, as applicable, to be material, then from time to time the Borrowers will pay to such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding company for any such reduction suffered.
6.8 Certificate. A certificate setting forth any additional amounts payable pursuant to §§6.6 or 6.7 and a brief explanation of such amounts which are due, submitted by any Lender or any Agent to the Borrowers, shall be conclusive, absent manifest error, that such amounts are due and owing.
6.9 Compensation for Losses. Upon demand of any Lender (with a copy to the each 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 an Applicable Floating 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 an Applicable Floating Rate Loan on the date or in the amount notified by such Borrower; or
(c) any assignment of an Applicable Offered Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by such Borrower pursuant to §20.2;
(d) excluding any loss of anticipated profits but including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.
For purposes of calculating amounts payable by the Applicable Borrower to the Lenders under this §6.9, each Lender shall be deemed to have funded each Applicable Offered Rate Loan made by it at the Applicable Offered Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Applicable Offered Rate Loan was in fact so funded.
6.10 Interest After Default. During the continuance of an Event of Default, pursuant to §§14.1(a) or 14.1(b) (a “Payment Event of Default”), (i) the overdue principal shall bear interest at a rate per annum equal to two percent (2%) above the rate of interest then applicable thereto (or, if no rate of interest is then applicable thereto, the Applicable Floating Rate) and (ii) (to the extent permitted by applicable law), overdue interest on the Loans and all other amounts payable hereunder that are overdue or under any of the other Loan Documents shall bear interest at a rate per annum equal to the Applicable Floating Rate plus the Applicable Margin applicable to Applicable Floating Rate for Revolving Loans plus two percent (2%) above rate of interest then applicable thereto, in each case, until such Payment Event of Default has been cured or remedied or until such amount shall be paid in full (after as well as before judgment).
6.11 Replacement of Lenders. If any Lender (an “Affected Lender”) (a) makes demand upon a Borrower for (or if a Borrower is otherwise required to pay) amounts pursuant to §§6.6, 6.7 or 6.12, (b) is unable to make or maintain Applicable Offered Rate Loans as a result of a condition described in §6.4
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or (c) becomes a Defaulting Lender or if any other circumstance exists under §27 that gives a Borrower the right to replace a Lender as a party hereto, such Borrower within ninety (90) days of receipt of such demand, notice (or the occurrence of such other event causing such Borrower to be required to pay such compensation or causing §6.4 to be applicable), or default, as the case may be, may, by notice in writing to the Administrative Agent and such Affected Lender, (i) request that the Affected Lender assign all of its Loans and Commitments to a replacement lender reasonably satisfactory to the Administrative Agent and such Borrower (the “Replacement Lender”); (ii) request the non-Affected Lenders to acquire and assume all of the Affected Lender’s Loans and applicable Commitments, as provided herein, but none of such Lenders shall be under an obligation to do so; or (iii) designate a Replacement Lender approved by the Administrative Agent, such approval not to be unreasonably withheld or delayed. If any satisfactory Replacement Lender shall be obtained, and/or if any one or more of the non-Affected Lenders shall agree to acquire and assume all of the Affected Lender’s Loans and applicable Commitments, then such Affected Lender shall assign, in accordance with §20, all of its applicable Commitments, Loans, Letter of Credit Participations, and other rights and obligations under this Credit Agreement and all other Loan Documents to such Replacement Lender or non-Affected Lenders, as the case may be, in exchange for payment of the principal amount so assigned and all interest and fees accrued on the amount so assigned, plus all other Obligations then due and payable to the Affected Lender; provided, however, that (A) such assignment shall be without recourse, representation or warranty and shall be on terms and conditions reasonably satisfactory to such Affected Lender and such Replacement Lender and/or non-Affected Lenders, as the case may be, (B) prior to any such assignment, the Borrowers shall have paid to such Affected Lender all amounts properly demanded and unreimbursed under §§6.6, 6.7 or 6.12 and (C) the Applicable Borrower shall be responsible for any fees or other amounts payable in connection with such assignment to the extent that such Affected Lender would have been required to pay such fees and other amounts in connection with such assignment. Upon the effective date of such assignment, the Applicable Borrower shall issue replacement Notes, if applicable, to such Replacement Lender and/or non-Affected Lenders, as the case may be, and such institution shall become a “Lender” for all purposes under this Credit Agreement and the other Loan Documents.
6.12 Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document shall to the extent permitted by applicable laws be made free and clear of and without reduction or withholding for any Taxes.
(ii) If any applicable withholding agent shall be required by applicable laws to withhold or deduct any Taxes from any payment, then (A) the applicable withholding agent shall withhold or make such deductions; (B) the applicable withholding agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with applicable laws; and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by such Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this §6.12) each Applicable Agent or Lender, as the case may be receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(b) Payment of Other Taxes by the Loan Parties. Without limiting the provisions of subsection (a) above, each Loan Party shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable laws.
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(c) Tax Indemnifications.
(i) Without limiting the provisions of subsection (a) or (b) above, each Loan Party shall, and does hereby, indemnify and hold harmless each Agent and each Lender, and shall make payment in respect thereof 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 §6.12) paid by such Agent or such Lender, 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. Each Loan Party shall also, and does hereby, indemnify each Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any amount which a Lender or an Issuing Lender for any reason fails to pay indefeasibly to such Agent as required by clause (ii) of this subsection (other than any amounts owing as a result of the gross negligence or willful misconduct of such Agent). A reasonably detailed certificate as to the amount of any such payment or liability delivered to such Loan Party by a Lender or an Issuing Lender (with a copy to the Applicable Agent), or by the Applicable Agent on its own behalf or on behalf of a Lender or an Issuing Lender, shall be conclusive absent manifest error. Any claim against any Loan Party pursuant to this clause (c) must be made within 180 days of the payment by the Agent or the Lender to which such claim relates.
(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and each Issuing Lender shall, and does hereby, indemnify each Loan Party and each Agent, and shall make payment in respect thereof within 10 days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the Loan Parties or the Agents) incurred by or asserted against any Loan Party or any Agent by any Governmental Authority as a result of the failure by such Lender or such Issuing Lender, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender or such Issuing Lender, as the case may be, to such Loan Party or such Agent pursuant to subsection (e). Each Lender and each Issuing Lender hereby authorizes the Applicable Agent to set off and apply any and all amounts at any time owing to such Lender or such Issuing Lender, as the case may be, under this Credit Agreement or any other Loan Document against any amount due to such Agent under this clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement of any Agent, any assignment of rights by, or the replacement of, a Lender or an Issuing Lender, the termination of the Total Commitment and the repayment, satisfaction or discharge of all other Obligations.
(d) Evidence of Payments. As soon as practicable, after any payment of Taxes by any Loan Party to a Governmental Authority as provided in this §6.12, GWI shall deliver to the Applicable Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment or other evidence of such payment reasonably satisfactory to the Applicable Agent.
(e) Status of Lenders; Tax Documentation.
(i) Each Lender shall deliver to the Borrowers and to the Agents, at the time or times prescribed by applicable Laws or when reasonably requested by any Borrower or any Agent, such properly completed and executed documentation prescribed by applicable Laws or by the Governmental Authorities of any jurisdiction and such other reasonably requested information as will permit such Borrower or such Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by any Loan Party
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hereunder or under any other Loan Document or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required to be delivered below in §6.12(e)(ii)) obsolete, expired or inaccurate in any material respect, deliver promptly to the Borrowers and the Agents updated or other appropriate documentation (including any new documentation reasonably requested by any Borrower or any Agent) or promptly notify the Borrowers and the Agents in writing of its inability to do so.
(ii) Without limiting the generality of the foregoing:
(A) any Domestic Lender that is a “United States person” within the meaning of §7701(a)(30) of the Code shall deliver to the Domestic Borrowers and the Administrative Agent executed originals of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding;
(B) each Domestic Lender that is a Foreign Lender and that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding Tax with respect to payments hereunder or under any other Loan Document shall deliver to the Domestic Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Credit Agreement (and from time to time thereafter upon the request of any Domestic Borrower or the Administrative Agent), whichever of the following is applicable:
(I) executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(II) executed originals 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, substantially in the form of Exhibit L 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 any Domestic 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 (any such certificate a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable,
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of Internal Revenue Service Form W-8IMY of the Foreign Lender, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate, substantially in the form of Exhibit I, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner that would be required under this §6.12(e) if such beneficial owner were a Domestic Lender, as applicable; provided that if the Foreign Lender is a partnership for United States federal income tax purposes and one or more direct or indirect partners of such Foreign Lender are claiming the exemption for portfolio interest, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I on behalf of such direct or indirect partner; and
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(V) executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States federal withholding Tax together with such supplementary documentation as may be prescribed by applicable laws to permit the Domestic Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(C) if any payment in respect of an Obligation made to any Lender under any Loan Documents would be subject to United States federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the applicable Borrower(s) and the Administrative Agent (and any other requesting Agent(s)) at the time or times prescribed by Law and at such time or times reasonably requested by any applicable Borrower(s) or Agent(s) such documentation prescribed by applicable Law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by any applicable Borrower(s) or Agent(s) as may be necessary for such Borrower(s) and the Agent(s) to comply with their obligations under FATCA, to determine whether such Lender has or has not complied with such Lender’s obligations under FATCA or determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this §6.12(e)(ii)(C), “FATCA” shall include any amendments made to FATCA after the date of this Credit Agreement.
(iii) Notwithstanding any other provision of this §6.12(e), a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver. Each Lender shall 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 jurisdiction that any Loan Party or any Applicable Agent make any withholding or deduction for Taxes from amounts payable to such Lender.
(iv) For purposes of FATCA, the Administrative Agent shall treat (and the Lenders hereby authorize Administrative Agent to treat) this Agreement (together with any loans or other extensions of credit pursuant thereto) as not qualifying as “grandfathered obligations” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall any Agent or any Lender have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If any Agent or any Lender receives and retains a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this §6.12, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this §6.12 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses and Taxes incurred by such Agent or such Lender, 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 such Loan Party, upon the request of such Agent or such Lender, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require any Agent or any Lender to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to a Loan Party or any other Person. Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent or any Lender be required to pay any amount to any Loan Party pursuant to this paragraph (f) the payment
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of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.
(g) U.K. Tax Matters. The provisions of §6.12(a) and (c) shall not apply, and instead the provisions of this §6.12(g) shall apply, with respect to any withholding or deduction on account of United Kingdom Taxes imposed on amounts payable to a UK Lender with respect to any UK Loan.
(i) [Reserved].
(ii) Tax Gross-up.
(A) Each Loan Party shall make all payments to be made by it in respect of any UK Loan without any Tax Deduction, unless a Tax Deduction is required by law.
(B) The UK Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the UK Agent accordingly. Similarly, a UK Lender shall notify the UK Agent on becoming so aware in respect of a payment payable to that UK Lender. If the UK Agent receives such notification from a UK Lender it shall notify the UK Borrower.
(C) If a Tax Deduction is required by law to be made by a Loan Party or any Agent in respect of any UK Loan, the amount of the payment due from that Loan Party shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(D) A payment shall not be increased under paragraph (C) above by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due:
(I) the payment could have been made to the relevant UK Lender without a Tax Deduction if the UK Lender had been a Qualifying Lender, but on that date that UK Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a UK Lender under this Credit Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or
(II) the relevant UK Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of Qualifying Lender and:
1. an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Loan Party making the payment a certified copy of that Direction; and
2. the payment could have been made to the UK Lender without any Tax Deduction if that Direction had not been made; or
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(III) the relevant UK Lender is a Qualifying Lender solely by virtue of clause (i)(B) of the definition of Qualifying Lender and:
1. the relevant UK Lender has not given a Tax Confirmation to the UK Borrower; and
2. the payment could have been made to the UK Lender without any Tax Deduction if the UK Lender had given a Tax Confirmation to the UK Borrower, on the basis that the Tax Confirmation would have enabled the UK Borrower to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or
(IV) the relevant UK Lender is a Treaty Lender and the UK Borrower is able to demonstrate that the payment could have been made to the UK Lender without the Tax Deduction had that UK Lender complied with its obligations under paragraph (G) or (H) (as applicable) below.
(E) If a Loan Party is required to make a Tax Deduction in respect of any UK Loan, that Loan Party shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
(F) Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Loan Party making that Tax Deduction shall deliver to the UK Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
(G)
(I) Subject to paragraph (II) below, a Treaty Lender and each Loan Party which makes a payment in respect of any UK Loan to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Loan Party to obtain authorization to make that payment without a Tax Deduction.
(II)
1. A Treaty Lender which becomes a Lender in respect of a UK Loan on or before the Restatement Effective Date that holds a passport under the H.M. Revenue & Customs DT Treaty Passport scheme, and which wishes that scheme to apply to this Credit Agreement, hereby confirms its scheme reference number and its jurisdiction of tax residence opposite its name on Schedule 6.12(g); and
2. a Lender that is an assignee under an Assignment and Assumption and that is a Treaty Lender that holds a passport under the H.M. Revenue & Customs DT Treaty Passport scheme, and which wishes that scheme to apply to this Credit Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in such Assignment and Assumption,
and, having done so, that Lender shall be under no obligation pursuant to paragraph (I) above.
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(H) If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (G)(II) above and:
(I) the UK Borrower making a payment to that UK Lender has not made a Borrower DTTP Filing in respect of that Lender; or
(II) the UK Borrower making a payment to that UK Lender has made a Borrower DTTP Filing in respect of that Lender but:
1. | that Borrower DTTP Filing has been rejected by H.M. Revenue & Customs; or |
2. | HM Revenue & Customs has not given the UK Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing, |
and in each case, the UK Borrower has notified that Lender in writing, that Lender and the UK Borrower shall co-operate in completing any additional procedural formalities necessary for that Loan Party to obtain authorization to make that payment without a Tax Deduction.
(I) If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (G)(II) above, no Loan Party shall make a Borrower DTTP Filing or file any other form relating to the H.M. Revenue & Customs DT Treaty Passport scheme in respect of that Lender’s Commitment(s) or its participation in any UK Loan unless the Lender otherwise agrees.
(J) The UK Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that filing to the UK Agent for delivery to the relevant Lender.
(K) A UK Non-Bank Lender which becomes a Lender in respect of a UK Loan on or before the Restatement Effective Date gives a Tax Confirmation to the relevant Loan Party by entering into this Credit Agreement.
(L) A UK Non-Bank Lender shall promptly notify the UK Borrower and the UK Agent if there is any change in the position from that set out in the Tax Confirmation.
(iii) Lender status confirmation.
Each Lender which becomes a Lender in respect of any UK Loan after the Restatement Effective Date shall indicate, in writing on the same day as the execution of the Assignment and Assumption which it executes on becoming a party, and for the benefit of the UK Agent and without liability to any Loan Party, which of the following categories it falls in:
(A) not a Qualifying Lender;
(B) a Qualifying Lender (other than a Treaty Lender); or
(C) a Treaty Lender.
If such a Lender which becomes Lender in respect of any UK Loan after the Restatement Effective Date fails to indicate its status in accordance with this 6.12(g)(iii) then such Lender shall be treated for the purposes of this §6.12(g) (including by each Loan Party) as if it is not a Qualifying Lender
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until such time as it notifies the UK Agent which category applies (and the UK Agent, upon receipt of such notification, shall inform the UK Borrower). For the avoidance of doubt, an Assignment and Assumption shall not be invalidated by any failure of a Lender to comply with this 6.12(g)(iii).
(iv) Tax Indemnity.
The UK Borrower shall (within 10 days of demand therefor) pay to a Finance Party an amount equal to the loss, liability or cost which such Finance Party determines will be or has been (directly or indirectly) suffered by such Finance Party for or on account of any Tax imposed by any taxing authority of the United Kingdom in respect of a UK Loan. Notwithstanding the foregoing, this (iv) shall not apply:
(A) with respect to any Tax assessed on any Finance Party:
(I) under the law of the jurisdiction in which such Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which such Finance Party is treated as resident for Tax purposes; or
(II) under the law of the jurisdiction in which such Lender’s Lending Office is located in respect of amounts received or receivable in that jurisdiction;
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by such Finance Party; or
(B) to the extent a loss, liability or cost:
(I) is compensated for by an increased payment under (ii) (Tax Gross-up), above; or
(II) would have been compensated for by an increased payment under (ii) (Tax gross-up), above, but was not so compensated solely because one of the exclusions in (ii)(D) applied.
A Finance Party making, or intending to make, a claim under this (iv) shall promptly notify the UK Agent of the event which will give, or has given, rise to the claim, following which the UK Agent shall notify the UK Borrower.
(v) Assignee Lenders.
A UK Lender that becomes a party to this Credit Agreement (or designates a new Lending Office) in respect of a UK Loan after the Restatement Effective Date shall not be entitled to receive any greater payment pursuant to §6.12(g)(ii) (Tax Gross-up) or §6.12(g)(iv) (Tax Indemnity) in respect of such UK Loan than the applicable assignor Lender (or the UK Lender prior to the designation of such new Lending Office) would have been entitled to receive with respect to such UK Loan, except to the extent such UK Loan is assigned to such UK Lender (or the designation of such new Lending Office is made) with the UK Borrower’s prior written consent (not to be unreasonably withheld or delayed); provided that this §6.12(g)(v) (Assignee Lenders) shall not apply to a Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with §6.12(g)(ii)(G)(2) if the UK Borrower making the payment has not made a Borrower DTTP Filing in respect of that Treaty Lender; provided, further, that this §6.12(g)(v) (Assignee Lenders) shall apply in
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respect of the first Interest Payment Date after the relevant assignment if that Treaty Lender did not provide such confirmation of its scheme reference number and its jurisdiction of tax residence at least 3 Business Days before that first Interest Payment Date.
(h) Each Lender hereby authorizes each Agent to deliver to the Loan Parties and to any successor Agent and any documentation provided by such Lender to such Agent pursuant to §6.12(e) or §6.12(g).
(i) General. The agreements in this §6.12 shall survive the termination of this Credit Agreement and the payment of the Loans and all other amounts payable hereunder. For the avoidance of doubt, the term “Lender” for purposes of this §6.12 includes any Swingline Lender and the Issuing Lender.
6.13 Interest Limitation. Notwithstanding any other term of this Credit Agreement or any Note or any other document referred to herein or therein, the maximum amount of interest which may be charged to or collected from any Person liable hereunder or under any Note by any Lender shall be absolutely limited to, and shall in no event exceed, the maximum amount of interest which could lawfully be charged or collected under applicable law (including, to the extent applicable, the provisions of §5197 of the Revised Statutes of the United States of America, as amended, 12 U.S.C. §85, as amended and the Criminal Code (Canada)), so that the maximum of all amounts constituting interest under applicable law, however computed, shall never exceed as to any Person liable therefor such lawful maximum, and any term of this Credit Agreement or any other Loan Document referred to herein or therein which could be construed as providing for interest in excess of such lawful maximum shall be and hereby is made expressly subject to and modified by the provisions of this paragraph.
6.14 Subordination Agreements of the Borrowers.
(a) Each of the Borrowers hereby agrees that the payment of any amounts due with respect to the indebtedness owing by any other Borrower to such Borrower is hereby subordinated to the prior payment in full in cash of the Obligations of such Borrower as set forth in the following sentence. If such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and before payment in full in cash of the Obligations, such amounts shall be collected, enforced, received by such Borrower as trustee for the Agents and be paid over to the Applicable Agent for the pro rata accounts of the Secured Parties to be applied to repay (or be held as security for the repayment of) the applicable Obligations pursuant to this Credit Agreement and the Collateral Documents.
(b) The payment of any amounts due with respect to any indebtedness of the Borrowers for money borrowed or credit received now or hereafter owed to the Guarantors is hereby subordinated to the prior payment in full in cash of all of the Obligations as set forth in the following sentence. If any Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, upon the occurrence and during the continuance of an Event of Default and while any Obligations are still outstanding, such amounts shall be collected, enforced and received by such Guarantor as trustee for the Secured Parties and the Agents and be paid over to the Agents, for the benefit of the Secured Parties and the Applicable Agent on account of the Obligations without affecting in any manner the liability of such Guarantor under the other provisions hereof.
(c) The provisions of this §6.14 are made for the benefit of the Agents and the other Secured Parties and their successors and assigns, and may be enforced in good faith by them from time to time against any Borrower as often as the occasion therefor may arise and without requirement on the part of any Agent or the Lenders first to marshal any of their claims or to exercise any of their rights against any
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other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §6.14 shall remain in effect until all of the Obligations (other than contingent obligations for which no claim has been asserted) shall have been paid in full in cash. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by any Agent or the other Secured Parties upon the insolvency, bankruptcy or reorganization of any Borrower or is repaid in good faith settlement of a pending or threatened avoidance claim, or otherwise, the provisions of this §6.14 will forthwith be reinstated in effect, as though such payment had not been made.
6.15 Indirect Tax.
(a) All payments to be made by a Borrower or a Guarantor under or in connection with any Loan Document have been calculated without regard to Indirect Tax. If all or part of any such payment is the consideration for a taxable supply or chargeable with Indirect Tax and the relevant Lender is required to account to any Governmental Authority for such Indirect Tax then, when such Borrower or Guarantor makes the payment:
(i) it must pay to the Administrative Agent for the account of the relevant Lender(s) an additional amount equal to that payment (or part) multiplied by the appropriate rate of Indirect Tax; and
(ii) such Lender(s) will promptly provide to such Borrower or Guarantor a Tax invoice, assessment or reassessment complying with the relevant law relating to such Indirect Tax, following which the Administrative Agent shall promptly provide the same to such Borrower or Guarantor.
(b) In the event that a Loan Document requires a Borrower or a Guarantor to reimburse a Lender for any costs or expenses, such Borrower or Guarantor shall also at the same time pay and indemnify such Lender against all Indirect Tax incurred by such Lender in respect of the costs or expenses save to the extent that such Lender (or any other person in the same group as such Lender for such Indirect Tax purposes) is entitled to repayment or credit in respect of the Indirect Tax. Such Lender will promptly provide to the Applicable Borrower or Guarantor a Tax invoice, assessment or reassessment complying with the relevant law relating to such Indirect Tax.
6.16 Cash Collateral.
(a) Upon the request of any Agent or the Issuing Lender (i) if the Issuing Lender has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in a Letter of Credit Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit Obligation for any reason remains outstanding, the Applicable Borrower (or GWI, on such Borrower’s behalf) shall, in each case, immediately Cash Collateralize the then outstanding amount of all Letter of Credit Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the request of any Agent, the Issuing Lender or any Swingline Lender, the Borrowers shall deliver to such Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to §6.17(a)(iv) and any Cash Collateral provided by the Defaulting Lender).
(b) All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Borrowers, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Agents, for the benefit of each Secured Party, and agrees to maintain, a first priority
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security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to §6.16(c). If at any time any Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Agents as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Applicable Borrower (or GWI, on such Borrower’s behalf) or the relevant Defaulting Lender will, promptly upon demand by any Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.
(c) Notwithstanding anything to the contrary contained in this Credit Agreement, Cash Collateral provided under any of this §6.16 or §§5, 6.17 or 14.2 in respect of Letters of Credit or Swingline Loans shall be held and applied to the satisfaction of the specific Letter of Credit Obligations, Swingline Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.
6.17 Defaulting Lenders.
(a) Notwithstanding anything to the contrary contained in this Credit Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Credit Agreement shall be restricted as set forth in §27.
(ii) Any payment of principal, interest, fees or other amounts received by the Applicable Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to §14 or otherwise, and including any amounts made available to the Applicable Agent by that Defaulting Lender pursuant to §15), shall be applied at such time or times as may be determined by the Applicable Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to any Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the Issuing Lender or any Swingline Lender hereunder; third, as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Credit Agreement, as determined by the Applicable Agent; fourth, if so determined by the Applicable Agent and the Borrowers, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Credit Agreement; fifth, to the payment of any amounts owing to the Lenders, the Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lender or any Swingline Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Credit Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers or any Subsidiaries thereof pursuant to any Secured Hedging Agreement with such Defaulting Lender or any affiliate thereof as certified to the Applicable Agent (with a copy to such Defaulting Lender) by an authorized officer of GWI prior to the date of such payment; seventh so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Credit Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Letter of
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Credit Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or Letter of Credit Borrowings were made at a time when the conditions set forth in §13 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this §6.17(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) That Defaulting Lender (x) shall not be entitled to receive any commitment fee pursuant to §2.2 for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in §5.10.
(iv) During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or Swingline Loans pursuant to §§2.7 and 5.5, the “Commitment Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided, that, (A) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (B) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swingline Loans shall not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding amount of the Loans, Swingline Exposure and Letter of Credit Obligations of that Lender. Subject to §37, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(b) If the Borrowers, the Administrative Agent, Swingline Lenders and the Issuing Lender agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their Commitment Percentages (without giving effect to §6.17(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
6.18 Incremental Facilities.
6.18.1. Borrower Request. After the Restatement Effective Date, any Borrower (including any Designated Subsidiary) may by written notice to the Administrative Agent elect to request (x) prior to the Maturity Date for the Revolving Loans, an increase to any of the existing Revolving Loan Commitments
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(each, an “Incremental Revolving Loan Commitment”) and/or (y) the establishment of one or more new term loan commitments (each, an “Incremental Term Commitment”, which, for the avoidance of doubt, will exclude the increase in Term Loans on the Restatement Effective Date), by an amount (such amount, the “Maximum Incremental Facilities Amount”) equal to the sum of (i) the greater of (x) an aggregate amount not to exceed $650,000,000 (of which, up to $300,000,000 can be incurred in the form of Incremental Revolving Loan Commitments) and (y) 100% of Consolidated EBITDA for the four (4) consecutive fiscal quarters then most recently ended for which financial statements have been delivered pursuant to §9.4, plus (ii) an additional amount if, after giving effect to the incurrence of such additional amount, the Senior Secured Leverage Ratio is less than or equal to 3.50:1.00 (assuming (x) in the case of Incremental Revolving Loan Commitments, that such Incremental Revolving Loan Commitments are fully drawn and (y) the net cash proceeds of any borrowings pursuant to Incremental Commitments shall not be netted in calculating the Senior Secured Leverage Ratio) ; provided that if at the time of any such incurrence or issuance, there is capacity under the foregoing clause (ii), then such capacity shall be deemed to be utilized pursuant to clause (ii) prior to utilizing any capacity available to the Borrowers under the foregoing clause (i). Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which the Applicable Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than five Business Days, or such sooner date as the Administrative Agent, in its sole discretion may agree, after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Eligible Assignee to whom the Applicable Borrower proposes any portion of such Incremental Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment. Each Incremental Commitment shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Incremental Commitments set forth above).
6.18.2. Conditions. The Incremental Commitments shall become effective as of the Increase Effective Date; provided that (except as otherwise provided in §6.18.7):
(i) (x) to the extent that such Incremental Commitments are incurred in connection with a Permitted Acquisition or other similar Investment, no Event of Default under §14.1(a), (b), (g) and (h) shall have occurred and be continuing or (y) otherwise, no Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(ii) (x) to the extent that such Incremental Commitments are incurred in connection with a Permitted Acquisition or other similar Investment, the Specified Representations shall be 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, or (y) otherwise, the representations and warranties contained in §8 and the other Loan Documents shall be 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 shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this clause (y), the representations and warranties contained in §8.4.1 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of §9.4;
(iii) to the extent that such Incremental Commitments are not incurred in connection with a Permitted Acquisition or other similar Investment, on a pro forma basis (assuming, in the case of Incremental Revolving Loan Commitments, that such Incremental Revolving Loan Commitments are fully drawn), the Borrowers shall be in compliance with each of the covenants set forth in §11 as of the end of the latest fiscal quarter for which internal financial statements are available; and
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(iv) the Borrowers shall make any breakage payments in connection with any adjustment of Revolving Loans pursuant to §6.9.
6.18.3. Terms of Incremental Loans and Commitments. The terms and provisions of Loans made pursuant to Incremental Commitments shall be as follows:
(i) the terms and provisions of Incremental Term Loans shall be, except as otherwise set forth herein or in the Increase Joinder, substantially similar to the Domestic Term Loans (it being understood that Incremental Term Loans may be a part of the Domestic Term Loans) and to the extent that the terms and provisions of Incremental Term Loans are not substantially similar to the Domestic Term Loans (except to the extent permitted by clause (iii), (iv), (v) or (vi) below) they shall be reasonably satisfactory to the Administrative Agent; provided that in any event the Incremental Term Loans must comply with clauses (iii), (iv) and (v) below;
(ii) the terms and provisions of Revolving Loans made pursuant to new Commitments shall be substantially similar to the Revolving Loans;
(iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than (x) in the case of Incremental Term Loans comprised of Domestic Term Loans the earliest maturing tranche of Domestic Term Loans and (y) in the case of Incremental Term Loans comprised of Term Loans the earliest maturing tranche of Term Loans;
(iv) the maturity date of Incremental Term Loans shall be no earlier than the Maturity Date of the Domestic Term Loans;
(v) the Applicable Margin for Incremental Term Loans shall be determined by the Applicable Borrower and the Lenders of the Incremental Term Loans; and
(vi) each tranche of Incremental Loans may be secured by either a pari passu or junior lien on the Collateral securing the Loans of such Borrower; provided that (i) if the liens securing such Incremental Loans are junior to the liens securing the Term Loans made on the Restatement Effective Date, they will be subject to the Second Lien Intercreditor Agreement and (ii) such Incremental Loans shall not at any time be guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors.
GWI will be entitled to seek commitments in respect of any tranche of Incremental Loans from existing Lenders or from additional banks, financial institutions and other institutional lenders with the consent of the Administrative Agent to the extent required by §20.
The Incremental Commitments shall be effected by a joinder agreement (the “Increase Joinder”) executed by GWI, the Applicable Borrower, the Administrative Agent and each Lender making any such Incremental Commitment, in form and substance reasonably satisfactory to each of the parties thereto. Notwithstanding the provisions of §7.1, the Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Credit Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this §6.18. In addition, unless otherwise specifically provided herein, all references in Loan Documents to Revolving Loans or Term Loans shall be deemed, unless the context otherwise requires, to include references to Revolving Loans made pursuant to Incremental Revolving Loan Commitments and Incremental Term Loans that are Term Loans, respectively, made pursuant to this Credit Agreement. This §6.18 shall supersede any provisions in §§2.11 or 27 to the contrary.
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6.18.4. Adjustment of Revolving Loans. To the extent the Commitments being increased on the relevant Increase Effective Date are Incremental Revolving Loan Commitments, then each Revolving Lender that is acquiring an Incremental Revolving Loan Commitment on the Increase Effective Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the other Revolving Lenders immediately prior to such Increase Effective Date, so that, after giving effect thereto, the Revolving Loans outstanding are held by the Revolving Lenders pro rata in accordance with their Revolving Loan Commitments after giving effect to such Incremental Revolving Loan Commitments. If there is a new borrowing of Revolving Loans on such Increase Effective Date, the Revolving Lenders after giving effect to such Increase Effective Date shall make such Revolving Loans in accordance with §2.1.
6.18.5. Making of New Term Loans. On any Increase Effective Date on which Incremental Term Loans are to be made or new Commitments for Term Loans are to become effective, subject to the satisfaction of the foregoing terms and conditions, each applicable Lender holding a Commitment to make such Incremental Term Loans shall make a Term Loan to the Applicable Borrower in an amount equal to its new Commitment.
6.18.6. Equal and Ratable Benefit. The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Credit Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranties and security interests created by the Collateral Documents, except that the new Loans may be subordinated in right of payment or the Liens securing the new Loans may be subordinated, in each case, to the extent set forth in the Increase Joinder and in accordance with the applicable Loan Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Liens and security interests granted by the Collateral Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such class of Term Loans or any such new Commitments.
6.18.7. Limited Condition Acquisition. Notwithstanding anything to the contrary in this Agreement, in connection with any Permitted Acquisition or other similar Investment that is not conditioned on the availability of, or on obtaining, third-party financing (a “Limited Condition Acquisition”), for purposes of determining compliance with the conditions to such Permitted Acquisition or other similar Investment and the availability of Indebtedness (other than in respect of any Revolving Loans) that is to be used to finance such Permitted Acquisition or other similar Investment in accordance with this §6.18.7, then the following provisions shall apply:
(i) any condition to such Limited Condition Acquisition or such Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Acquisition or the incurrence of such Indebtedness, shall be satisfied if (i) no Event of Default under any of §14.1(a), (b), (g) and (h) shall have occurred and be continuing both before and after giving effect to such Limited Condition Acquisition and any Indebtedness incurred in connection therewith (including such additional Indebtedness) and (ii) no Default or Event of Default shall have occurred and be continuing at the time of execution of the definitive agreement governing such Limited Condition Acquisition;
(ii) any condition to such Limited Condition Acquisition or such Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of such Limited Condition Acquisition or the incurrence of such
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Indebtedness shall be satisfied if (I) the representations and warranties in the Loan Documents are true and correct in all material respects at the time of the execution of the definitive agreement governing such Limited Condition Acquisition (unless such representation relates to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) and (II) the Specified Representations shall be true and correct after giving effect to such Limited Condition Acquisition and any Indebtedness incurred in connection therewith; and
(iii) any condition to such Limited Condition Acquisition or such Indebtedness relating to pro forma compliance with any financial covenants or incurrence ratio shall be determined solely as of the date that the definitive documentation relating to such Permitted Acquisition or other similar Investment is entered into by a Borrower or any Restricted Subsidiary and treating such Indebtedness as incurred for purposes of all calculations hereunder and thereafter; provided that the foregoing provisions shall apply with similar effect during the pendency of multiple Limited Condition Acquisitions such that each of the possible scenarios is separately tested.
6.19 Extension Offers.
(a) Notwithstanding anything to the contrary in this Credit Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrowers to all Lenders of Term Loans with a like maturity date or Revolving Loans Commitments with a like maturity date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans or Revolving Loan Commitments with a like maturity date, as the case may be) and on the same terms to each such Lender, the Borrowers are hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Term Loans and/or Revolving Loan Commitments and otherwise modify the terms of such Term Loans and/or Revolving Loan Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Term Loans and/or Revolving Loan Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension”, and each group of Term Loans or Revolving Loan Commitments, as applicable, in each case as so extended (any such commitment so extended, an “Extended Revolving Loan Commitment”), as well as the original Term Loans and the original Revolving Loan Commitments (in each case not so extended), being a “Facility”; any Extended Term Loans shall constitute a separate Term Loan Facility (an “Extended Term Loan Facility”) from the portion of the applicable Term Loan Facility not being extended, and any Extended Revolving Loan Commitments shall constitute a separate Revolving Loan Facility (an “Extended Revolving Loan Facility”) from the portion of the Revolving Loan Facility not being extended), so long as the following terms are satisfied: (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders, (ii) except as to interest rates, fees and final maturity (which shall be determined by GWI and set forth in the relevant Extension Offer), the Revolving Loan Commitment of any Lender that agrees to an Extension with respect to such Revolving Loan Commitment (an “Extending Revolving Loan Lender”) extended pursuant to an Extension (an “Extended Revolving Loan”), and the related outstandings, shall be a Revolving Loan Commitment (or related outstandings, as the case may be) with the same terms as the original Revolving Loan Commitments (and related outstandings); provided that (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Extended Revolving Loan Commitments (and related outstandings), (B) repayments required upon the maturity date of the non-extending Revolving Loan Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments) of Loans with respect to Extended Revolving Loan Commitments after the applicable Extension shall be made on a pro rata basis with all other Revolving Loan Commitments, (2) subject to the provisions of §§2.7.6 and 5.1.6 to the extent dealing with
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Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Revolving Loan Commitments with a longer maturity date, all Swing Line Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Loan Commitments (and except as provided in §§2.7.6 and 5.1.6, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Loans with respect to, and termination of, Extended Revolving Loan Commitments after the date of the applicable Extension date shall be made on a pro rata basis with all other Revolving Loan Commitments, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any Revolving Loan Facility on a better than a pro rata basis as compared to any other Revolving Loan Facility with a later maturity date than such Revolving Loan Facility and (4) assignments and participations of Extended Revolving Loan Commitments and Extended Revolving Loans shall be governed by the same assignment and participation provisions applicable to existing Revolving Loan Commitments and Revolving Loans and (5) at no time shall there be Revolving Loan Commitments hereunder (including Extended Revolving Loan Commitments) which have more than three different maturity dates (unless otherwise agreed by the Administrative Agent), (iii) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (v), (vi) and (vii), be determined between the Applicable Borrower and set forth in the relevant Extension Offer), the Term Loans of any Term Lender that agrees to an Extension with respect to such Term Loans (an “Extending Term Lender”) extended pursuant to any Extension (“Extended Term Loans”) shall have the same terms as the Term Loan Facility subject to such Extension Offer, (iv) the final maturity date of any Extended Term Loans shall be no earlier than the Term Loan Facility with the latest maturity date of each applicable Class of Term Loans, (v) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby, (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Extension Offer, (vii) if the aggregate principal amount of Term Loans (calculated on the face amount thereof) or Revolving Loan Commitments, as the case may be, in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans or Revolving Loan Commitments, as the case may be, offered to be extended by the Applicable Borrower pursuant to such Extension Offer, then the Term Loans or Revolving Loans, as the case may be, of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer, with any allocated amounts in excess of any applicable Lender’s actual holdings of record to be reallocated pro rata across the remaining Lenders of the applicable Class of Term Loans or Revolving Loans who have accepted such Extension Offer, (viii) all documentation in respect of such Extension shall be consistent with the foregoing and (ix) the Extension Offer may be subject to such additional conditions (including the waiver of such conditions) as the Borrower in its discretion shall determine.
(b) With respect to all Extensions consummated by the Borrowers pursuant to this §6.19, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of §4 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment, provided that the Applicable Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Term Loans or Revolving Loan Commitments (as applicable) of any or all applicable Facilities be tendered. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this §6.19 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Credit Agreement (including, without limitation, §§2.11 and 4) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this §6.19.
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(c) No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans and/or