<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
Quarterly report pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
for the quarter ended September 30, 1999 Commission File No. 0-20847
GENESEE & WYOMING INC.
(Exact name of registrant as specified in its charter)
Delaware 06-0984624
- ----------------------- --------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
71 Lewis Street, Greenwich, Connecticut 06830
- --------------------------------------- ---------
(Address of principal executive offices) (Zip Code)
(203) 629-3722
- --------------
(Telephone No.)
Shares of common stock outstanding as of the close of business on November 8,
1999:
Class Number of Shares Outstanding
- ----- ----------------------------
Class A Common Stock 3,453,327
Class B Common Stock 845,539
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
[X] YES [ ] NO
<PAGE>
INDEX
<TABLE>
<CAPTION>
Part I - Financial Information
Item 1. Financial Statements: Page
------
<S> <C>
Consolidated Statements of Income - For the
Three Month and Nine Month Periods Ended
September 30, 1999 and 1998 ............................................. 3
Consolidated Balance Sheets - September 30, 1999
and December 31, 1998.................................................... 4
Consolidated Statements of Cash Flows - For the
Nine Month Periods Ended September 30, 1999
and 1998................................................................. 5
Notes to Consolidated Financial Statements................................. 6 - 11
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations................................. 12 - 31
Item 3. Quantitative and Qualitative Disclosures About
Market Risk................................................................... 31
Part II - Other Information............................................................ 32
Index to Exhibits...................................................................... 33 - 34
Signatures............................................................................. 35
</TABLE>
2
<PAGE>
GENESEE & WYOMING INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(in thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
1999 1998 1999 1998
-----------------------------------------------------------------
OPERATING REVENUES $ 45,063 $ 34,707 $ 121,905 $ 109,514
-----------------------------------------------------------------
OPERATING EXPENSES:
<S> <C> <C> <C> <C>
Transportation 13,868 11,402 39,085 35,174
Maintenance of ways and structures 5,703 4,151 14,645 12,834
Maintenance of equipment 8,800 6,390 23,827 21,262
General and administrative 7,301 6,066 21,348 19,102
Depreciation and amortization 3,040 2,560 8,887 7,357
-----------------------------------------------------------------
Total operating expenses 38,712 30,569 107,792 95,729
-----------------------------------------------------------------
INCOME FROM OPERATIONS 6,351 4,138 14,113 13,785
Interest expense (2,285) (1,763) (5,609) (4,968)
Other income (expense) 301 101 84 669
-----------------------------------------------------------------
Income before income taxes 4,367 2,476 8,588 9,486
Provision (benefit) for income tax (2,324) 1,073 (517) 3,955
-----------------------------------------------------------------
NET INCOME $ 6,691 $ 1,403 $ 9,105 $ 5,531
=================================================================
Earnings per common
share - basic $ 1.56 $ 0.27 $ 2.00 $ 1.05
=================================================================
Weighted average number of shares of
common stock - basic 4,298 5,213 4,547 5,267
=================================================================
Earnings per common
share - diluted $ 1.53 $ 0.27 $ 1.98 $ 1.04
=================================================================
Weighted average number of shares of
common stock - diluted 4,367 5,213 4,604 5,338
=================================================================
</TABLE>
3
<PAGE>
GENESEE & WYOMING INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except share amounts)
<TABLE>
<CAPTION>
September 30, Dec. 31,
1999 1998
ASSETS (Unaudited)
-----------------------------
CURRENT ASSETS:
<S> <C> <C>
Cash and cash equivalents $ 16,704 $ 14,396
Accounts receivable, net 37,257 31,723
Materials and supplies 5,869 3,502
Prepaid expenses and other 5,466 2,914
Deferred income tax assets, net 5,010 2,315
-----------------------------
Total current assets 70,306 54,850
-----------------------------
PROPERTY AND EQUIPMENT, net 184,598 125,562
-----------------------------
SERVICE ASSURANCE AGREEMENT, net 12,252 12,814
-----------------------------
INVESTMENT IN UNCONSOLIDATED AFFILIATES 341 13,215
-----------------------------
OTHER ASSETS, net 31,535 10,319
-----------------------------
Total assets $ 299,032 $ 216,760
=============================
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of long-term debt $ 5,676 $ 2,591
Accounts payable 43,364 28,814
Accrued expenses 9,097 11,338
-----------------------------
Total current liabilities 58,137 42,743
-----------------------------
LONG-TERM DEBT, less current portion 119,698 63,099
-----------------------------
OTHER LIABILITIES 4,379 2,803
-----------------------------
DEFERRED INCOME TAX LIABILITIES, net 11,697 12,006
-----------------------------
DEFERRED ITEMS--grants from governmental agencies 22,768 17,607
-----------------------------
DEFERRED GAIN--sale/leaseback 3,614 3,965
-----------------------------
MINORITY INTEREST 526 -
-----------------------------
STOCKHOLDERS' EQUITY:
Class A common stock, $0.01 par value, one vote per share; 12,000,000 shares
authorized; 4,452,289 and 4,450,276 issued and
outstanding on September 30, 1999 and December 31, 1998, respectively. 45 45
Class B common stock, $0.01 par value, 10 votes per share;
1,500,000 shares authorized; 845,539 issued and outstanding
on June 30, 1999 and December 31, 1998. 8 8
Additional paid-in capital 46,741 46,730
Retained earnings 43,595 34,490
Foreign currency translation adjustment (1,173) (2,107)
Less treasury stock, at cost, 1,000,000 and 345,000 Class A shares
held on June 30, 1999 and December 31, 1998, respectively. (11,003) (4,629)
-----------------------------
Total stockholders' equity 78,213 74,537
-----------------------------
Total liabilities and stockholders' equity $ 299,032 $ 216,760
=============================
</TABLE>
4
<PAGE>
GENESEE & WYOMING INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands) (Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
1999 1998
----------------------------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income $ 9,105 $ 5,531
Adjustments to reconcile net income to net cash provided
by operating activities-
Depreciation and amortization 8,887 7,357
Deferred income taxes (2,033) 2,957
Gain on disposition of property and equipment (186) (82)
Changes in assets and liabilities, net of effect
of acquired business -
Accounts receivable 241 296
Materials and supplies (641) 927
Prepaid expenses and other (996) 32
Accounts payable and accrued expenses 4,342 (6,701)
Other assets and liabilities, net 1,581 758
----------------------------
Net cash provided by operating activities 20,300 11,075
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (21,765) (13,431)
Cash received in purchase of Rail-One Inc. less cash paid
for common stock 57 ---
Purchase of assets of Ferrocarriles de Chiapas-Mayab (30,527) ---
Proceeds from disposition of property 298 2,012
----------------------------
Net cash used in investing activities (51,937) (11,419)
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payments on long-term borrowings, including capital leases (61,546) (13,354)
Proceeds from issuance of long-term debt 96,523 13,800
Debt issuance costs (1,300) ---
Net proceeds on grants 5,947 155
Proceeds from issuance of common stock 60 44
Purchase of treasury stock (6,374) (4,629)
----------------------------
Net cash provided by (used in) financing activities 33,310 (3,984)
----------------------------
EFFECT OF EXCHANGE RATE CHANGES ON CASH AND CASH EQUIVALENTS 635 (290)
----------------------------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 2,308 (4,618)
CASH AND CASH EQUIVALENTS, beginning of period 14,396 11,434
----------------------------
CASH AND CASH EQUIVALENTS, end of period $ 16,704 $ 6,816
============================
CASH PAID DURING PERIOD FOR:
Interest $ 5,850 $ 5,016
Incomes taxes $ 7,121 $ 1,542
SUPPLEMENTAL NON-CASH INVESTING ACTIVITIES:
Acquisition of controlling interest of GRO:
Receivables forgiven $ (11,742) ---
Liabilities assumed (29,176) ---
Assets acquired 40,861 ---
Capital lease obligation --- $ (5,100)
</TABLE>
5
<PAGE>
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. PRINCIPLES OF CONSOLIDATION AND BASIS OF PRESENTATION:
The interim consolidated financial statements presented herein include the
accounts of Genesee & Wyoming Inc. and its subsidiaries. References to "GWI" or
the "Company" mean Genesee & Wyoming Inc. and, unless the context indicates
otherwise, its consolidated subsidiaries. All significant intercompany
transactions and accounts have been eliminated in consolidation. These interim
consolidated financial statements have been prepared by the Company, without
audit, pursuant to the rules and regulations of the Securities and Exchange
Commission (the "SEC"). In the opinion of management, the unaudited financial
statements for the three-month and nine-month periods ended September 30, 1999
and 1998 are presented on a basis consistent with audited financial statements
and contain all adjustments, consisting only of normal recurring adjustments,
necessary for a fair presentation. The interim consolidated financial statements
should be read in conjunction with the audited financial statements and notes
thereto for the year ended December 31, 1998 included in the Company's Form
10-K.
The results of operations for interim periods are not necessarily indicative
of results of operations for the full year.
2. CORPORATE DEVELOPMENTS:
Compania de Ferrocarriles de Chiapas-Mayab, S.A. de C.V.
In August 1999, the Company's wholly-owned subsidiary, Compania de
Ferrocarriles de Chiapas-Mayab, S.A. de C.V. ("FCCM"), was awarded a 30-year
concession to operate certain railways owned by the state-owned rail company
Ferronales. FCCM also acquired equipment and other assets. The aggregate
purchase price, including acquisition costs, was 288 million pesos, or
approximately $30.5 million at then-current exchange rates. The purchase
included $12.3 million of rolling stock, a $9.7 million advance payment on track
improvements to be completed on the state-owned track property by mid-2000, a
$1.0 million escrow payment which will be returned to the Company upon
successful completion of the track improvements, and an expected future
utilization by the Company of $2.2 million of value-added taxes paid on the
transaction. The remaining purchase price ($5.3 million), together with an
estimated $1.0 million of employee termination payments that the Company expects
to make to affected employees, was allocated to the 30 year operating license.
As the track improvements are made, the related costs will be reclassified into
the property accounts as leasehold improvements and amortized over the
improvements' estimated useful life of 20 years. The employee termination
payments will be made to former state employees and approximately 55 employees
that the Company retained upon acquisition but will terminate as part of its
plan to reduce operating costs after September 30, 1999. Payments will begin in
the fourth quarter of 1999 and continue through 2000.
The Chiapas-Mayab concession is made up of two separate rail lines. The
Chiapas is approximately 450 kilometers (280 miles) long and runs between
Ixtepec in the Mexican state of Oaxaca, and Ciudad Hidalgo in the Mexican state
of Chiapas. Principal commodities hauled include cement, corn, petroleum
products and various agricultural products. The Mayab extends approximately
1,100 kilometers (680 miles) from Coatzacoalcos in the Mexican state of Vera
Cruz, to beyond Merida in the Mexican state of Yucatan. Principal commodities
hauled on the line include cement, silica sand and various agricultural
products. The two railroads are connected via trackage rights over Ferrosur (a
recently privatized rail concession) and a government-owned line. FCCM began
operations on September 1, 1999.
6
<PAGE>
Australia Favorable Income Tax Legislation
In the third quarter of 1999, the Australian government enacted an income tax
law that, for assets acquired from a tax-exempt entity, impacts the depreciable
basis of those assets. The impact of the new law on the Company's Australian
operation is that it will be able to deduct, for income tax purposes,
depreciation in excess of the financial reporting basis of certain fixed assets
acquired from the government in November 1997. However, management estimates
that it is more likely than not that the Company will be unable to fully realize
all of the potential income tax benefits and accordingly, has established a
partial valuation allowance against the deferred tax assets recorded pursuant to
the tax law change. Accordingly, the net income tax benefit recorded in the 1999
third quarter as a result of this tax law change was $4.2 million. Management's
assessment of the likelihood of realizing the full benefit of this incremental
tax depreciation included a review of the Australian operation's forecasted
results for the next several years which indicated that, with the additional tax
depreciation deductions and other accelerated deductions for income tax
purposes, this operation would not likely realize this tax benefit.
The Australian government has also announced proposed legislation that would
decrease the corporate income tax rate from its current level of 36% to 34% for
the year beginning January 1, 2000 and 30% for the years beginning January 1,
2001 and thereafter. Pursuant to current accounting regulations, the Company
must recognize the impact of this second tax law change when such law is
enacted, which is expected in 2000. Had the proposed law been enacted as of
September 30, 1999, the estimated decrease in the Australian operation's net
deferred income tax assets would have been approximately $157,000. The actual
impact will be recorded as additional income tax expense in the quarter that the
new law is enacted.
Credit Facilities
On August 17, 1999, the Company amended and restated its credit facilities
agreement to provide for an increase from $65.0 million to $150.0 million. The
agreement provides for $88.0 million in revolving credit facilities and $62.0
million in term loan facilities. The revolving credit facility provides for a
sub limit of $15.0 million in Australian dollar equivalents to be allocated to
the Australian subsidiaries. The amended and restated credit facilities
agreement also provides for a U.S. Term Loan facility in the amount of $10.0
million, a Canadian Term Loan facility in the Canadian Dollar Equivalent of
$22.0 million, and a Mexican Term Loan facility of $30.0 million. The facility
has a maturity date of August 17, 2004. The credit facilities accrue interest at
various rates depending on which country the funds are drawn in, plus the
applicable margin, which varies from 1.75% to 2.5% depending upon which country
the funds are drawn in and the Company's funded debt to EBITDA ratio, as defined
in the agreement. Interest is payable in arrears based on certain elections of
the Company, not to exceed three months outstanding. The Company pays a
commitment fee which varies between 0.375% and 0.500% per annum on all unused
portions of the revolving credit facility depending on the Company's funded debt
to EBITDA ratio. The credit facilities agreement requires mandatory prepayments
from the issuance of new equity or debt and annual sale of assets in excess of
varying minimum amounts depending in which country the sales occur. The credit
facilities are secured by essentially all the assets of the Company. The credit
facilities agreement requires the maintenance of certain covenant ratios or
amounts, including, but not limited to, funded debt to EBITDA, minimum EBITDA
for a period, cash flow coverage, and Net Worth, all as defined in the
agreement.
7
<PAGE>
3. GENESEE RAIL-ONE INC.:
On April 15, 1999, the Company closed on an agreement to acquire Rail-One Inc.
("Rail-One") which has 47.5% ownership interest in Genesee Rail-One Inc. ("GRO")
thereby increasing the Company's ownership of GRO to 95%. GRO owns and operates
two short line railroads in Canada. Under the terms of the purchase agreement,
the Company converted outstanding notes receivable from Rail-One of $4.6
million, will pay approximately $844,000 in cash to the owners of Rail-One in
installments over a four year period, and granted options to the owners of
Rail-One to purchase up to 80,000 shares of the Company's Class A Common Stock
at an exercise price of $8.62 per share. Exercise of the option is contingent on
the Company's recovery of its capital investment in GRO including debt assumed
if the Company were to sell GRO, and upon certain GRO income performance
measures. The transaction is accounted for as a purchase and resulted in $2.2
million of goodwill which is amortized over 15 years. The contingent purchase
price will be recorded as a component of goodwill at the value of the options
issued, if and when such options are exercisable. Effective with this agreement,
the operating results of GRO have been consolidated within the financial
statements of the Company, with a 5% minority interest due to another GRO
shareholder. Prior to April 15, 1999, the Company accounted for its investment
in GRO under the equity method.
4. LEASES:
In March 1997, a subsidiary of the Company entered into a master capital lease
agreement with a leasing company. The capital lease provided for the inclusion
of up to $13.0 million in railroad rolling stock, of which $11.6 million was
under commitment as of August, 1998. In September 1998, the Company completed an
exchange of like-kind assets with the leasing company reducing its commitment
under the master lease agreement by approximately $5.1 million. The remaining
$6.5 million lease obligation was liquidated in February, 1999, through the
purchase of the remaining assets held under the master lease agreement.
5. CONTINGENCIES:
IMRR - On August 6, 1998, a lawsuit was commenced against the Company and its
subsidiary, Illinois & Midland Railroad, Inc. ("IMRR"), by Commonwealth Edison
Company ("ComEd") in the Circuit Court of Cook County, Illinois. The suit
alleges that IMRR is in breach of certain provisions of a stock purchase
agreement entered into by a prior unrelated owner of the IMRR rail line. The
provisions allegedly pertain to limitations on rates received by IMRR and the
unrelated predecessor for freight hauled for ComEd's Powerton plant. The suit
seeks unspecified compensatory damages for alleged past and ongoing rate
overcharges. The Company believes the suit is without merit and intends to
vigorously defend against the suit.
The parent company of ComEd has contracted to sell certain of ComEd's power
facilities, one of which is the Powerton plant served by IMRR under the
provisions of a 1987 Service Assurance Agreement (the "SAA"), entered into by a
prior unrelated owner of the IMRR rail line. The SAA, which is not terminable
except for failure to perform, provides that IMRR has exclusive access to
provide rail service to the Powerton plant. On April 6, 1999, a lawsuit was
commenced by the Company and its subsidiary, IMRR, against ComEd in the Circuit
Court of Sangamon County, Illinois. The suit sought declaration of certain
rights regarding the SAA including declarations that the SAA is not terminable
at will and that ComEd must assign its contractual obligations under the SAA to
the purchaser of the Powerton plant. On June 10, 1999, IMRR's suit against Com
Ed in Sangamon County was voluntarily withdrawn without prejudice in partial
resolution of several procedural motions
8
<PAGE>
pending in the Cook County action, and with the explicit recognition from ComEd
that the action may be re-filed in Cook County.
ComEd is currently IMRR's largest customer and in 1998 the Powerton plant
accounted for 6.3% of the consolidated revenues of the Company and its
subsidiaries. Failure to satisfactorily resolve this litigation could have a
material adverse effect on the Company.
Conrail Merger - On July 23, 1998, the Surface Transportation Board ("STB")
issued its written order approving the petition of CSX Transportation, Inc.
("CSX") and Norfolk Southern Corp. ("NS") to control and divide the assets of
Consolidated Rail Corporation ("Conrail"). Railroads in the Company's New York
and Pennsylvania region interchange with, or participate in overhead traffic
with, one or both of these railroads. Overhead traffic is defined as traffic
that neither originates nor terminates on the Company's northeastern rail
network. In their joint filing with the STB, CSX and NS estimated that
approximately $8.3 million in freight revenue related to overhead traffic on one
of the Company's subsidiaries may be diverted as a result of the transactions.
The Company substantially agrees with this estimate and is implementing
operational changes aimed at minimizing this impact. On October 21, 1997, the
Company and several of its railroads entered into a confidential Rate and Route
Agreement with CSX that the Company believes will facilitate the operations'
restructuring process. The STB's written order contains one or more conditions
which also may minimize this impact. The division of Conrail's assets occurred
on June 1, 1999. While the Company believes that agreements reached with CSX and
NS in regard to the Conrail breakup will ultimately benefit the Company, the
operational startups by CSX and NS of the former Conrail lines have created some
operational challenges which have had a commensurate negative impact on
financial performance. Although the effects of these challenges were expected,
the Company continues to monitor the situation very carefully. Based on its
initial studies, the Company believes that no impairment of its assets has
occurred or will occur.
Stock Repurchase - On August 12, 1998, the Company's board of directors
authorized the Company's repurchase of up to one million shares of the Company's
Class A common stock under Rule 10b-18. On May 10, 1999, the Company completed
its purchase of the one million shares authorized by the board of directors at a
total cost of $11.0 million.
6. COMPREHENSIVE INCOME:
Comprehensive income is the total of net income and all other non-owner
changes in equity. The following table sets forth the Company's comprehensive
income for the periods ended September 30, 1999 and 1998:
Statement of Comprehensive Income
(in thousands)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income $6,691 $1,403 $9,105 $5,531
Other comprehensive income -
Foreign currency translation
adjustments 190 (684) 934 (924)
------------------------------------------------------------
Comprehensive income $6,881 $ 719 $10,039 $4,607
============================================================
</TABLE>
9
<PAGE>
7. BUSINESS SEGMENT INFORMATION:
The Company operates in three business segments in four geographic areas:
North American Railroad Operations, which includes operating short line and
regional railroads, and buying, selling, leasing and managing railroad
transportation equipment within the United States, Canada and Mexico; Australian
Railroad Operations, which includes operating a regional railroad and providing
hook and pull (haulage) services to other railroads within Australia; and
Industrial Switching, which includes providing freight car switching and related
services to industries with extensive railroad facilities within their complexes
in the United States.
Intersegment sales and transfers are not significant. Summarized financial
information for each business segment for the three month and nine month periods
ended September, 1999 and 1998 are shown in the following tables: (in thousands)
Three Months Ended September 30,
<TABLE>
<CAPTION>
North American Australian Industrial
Railroad Railroad Switching
1999 Operations Operations Operations Total
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues $31,708 $10,860 $ 2,495 $45,063
Operating income 4,759 1,663 (71) 6,351
Other expense, net (1,984)
Income before taxes 4,367
Identifiable assets 250,435 40,219 8,378 299,032
- --------------------------------------------------------------------------------------------------
North American Australian Industrial
Railroad Railroad Switching
1998 Operations Operations Operations Total
- --------------------------------------------------------------------------------------------------
Revenues $21,222 $10,325 $ 3,160 $34,707
Operating income (loss) 2,450 2,175 (487) 4,138
Other expense, net (1,662)
Income before taxes 2,476
Identifiable assets 153,543 37,430 9,446 200,419
- --------------------------------------------------------------------------------------------------
Nine Months Ended September 30,
North American Australian Industrial
Railroad Railroad Switching
1999 Operations Operations Operations Total
- --------------------------------------------------------------------------------------------------
Revenues $80,702 $32,440 $ 8,763 $121,905
Operating income (loss) 9,514 4,747 (148) 14,113
Other expense, net (5,525)
Income before taxes 8,588
Identifiable assets 250,435 40,219 8,378 299,032
- --------------------------------------------------------------------------------------------------
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
North American Australian Industrial
Railroad Railroad Switching
1998 Operations Operations Operations Total
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues $65,139 $34,737 $ 9,638 $109,514
Operating income (loss) 9,382 5,976 (1,573) 13,785
Other expense, net (4,299)
Income before taxes 9,486
Identifiable assets 153,543 37,430 9,446 200,419
- --------------------------------------------------------------------------------------------------
</TABLE>
The remainder of this page is intentionally left blank.
11
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the Company's
consolidated financial statements and related notes included elsewhere in this
Quarterly Report on Form 10-Q, and with the consolidated financial statements,
related notes and other financial information included in the Company's 1998
Form 10-K.
General
The Company is a holding company whose subsidiaries own and/or operate short
line and regional freight railroads and provide related rail services in North
America and Australia. The Company, through its U.S. industrial switching
subsidiary, also provides freight car switching and related services to United
States industries with extensive railroad facilities within their complexes. The
Company generates revenues primarily from the movement of freight over track
owned or operated by its railroads. The Company also generates non-freight
revenues primarily by providing freight car switching and related rail services
such as railcar leasing, railcar repair and storage to industries with extensive
railroad facilities within their complexes, to shippers along its lines, and to
the Class I railroads that connect with its North American lines.
The Company's operating expenses include wages and benefits, equipment rents
(including car hire), purchased services, depreciation and amortization, diesel
fuel, casualties and insurance, materials and other expenses. Car hire is a
charge paid by a railroad to the owners of railcars used by that railroad in
moving freight. Other expenses generally include property and other non-income
taxes, professional services, communication and data processing costs and
general overhead expense.
When comparing the Company's results of operations from one reporting period
to another, the following factors should be taken into consideration. The
Company has historically experienced fluctuations in revenues and expenses such
as one-time freight moves, customer plant expansions and shut-downs, railcar
sales, accidents and derailments. In periods when these events occur, results of
operations are not easily comparable to other periods. Also, much of the
Company's growth to date has resulted from acquisitions. The Company completed
two acquisitions during the first four months of 1996, one in November 1996, and
another in November 1997. On April 15, 1999, the Company began consolidating the
results of Genesee Rail-One Inc. (as described below). On September 1, 1999, the
Company began operations of its newly-formed subsidiary, Compania de
Ferrocarriles de Chiapas-Mayab, S.A. de C.V. ("FCCM"). Because of variations in
the structure, timing and size of these acquisitions and differences in
economics among the Company's railroads resulting from differences in the rates
and other material terms established through negotiation, the Company's results
of operations in any reporting period may not be directly comparable to its
results of operations in other reporting periods.
Compania de Ferrocarriles de Chiapas-Mayab, S.A. de C.V.
In August 1999, the Company's wholly-owned subsidiary, Compania de
Ferrocarriles de Chiapas-Mayab, S.A. de C.V. ("FCCM"), was awarded a 30-year
concession to operate certain railways owned by the state-owned rail company
Ferronales. FCCM also acquired equipment and other assets. The aggregate
purchase price, including acquisition costs, was 288 million pesos, or
approximately $30.5 million at then-current exchange rates. The purchase
included $12.3 million of rolling stock, a $9.7 million advance payment on track
12
<PAGE>
improvements to be completed on the state-owned track property by mid-2000, a
$1.0 million escrow payment which will be returned to the Company upon
successful completion of the track improvements, and an expected future
utilization by the Company of $2.2 million of value-added taxes paid on the
transaction. The remaining purchase price ($5.3 million), together with an
estimated $1.0 million of employee termination payments that the Company expects
to make to affected employees, was allocated to the 30 year operating license.
As the track improvements are made, the related costs will be reclassified into
the property accounts as leasehold improvements and amortized over the
improvements' estimated useful life of 20 years. The employee termination
payments will be made to former state employees and approximately 55 employees
that the Company retained upon acquisition but will terminate as part of its
plan to reduce operating costs after September 30, 1999. Payments will begin in
the fourth quarter of 1999 and continue through 2000.
The Chiapas-Mayab concession is made up of two separate rail lines. The
Chiapas is approximately 450 kilometers (280 miles) long and runs between
Ixtepec in the Mexican state of Oaxaca, and Ciudad Hidalgo in the Mexican state
of Chiapas. Principal commodities hauled include cement, corn, petroleum
products and various agricultural products. The Mayab extends approximately
1,100 kilometers (680 miles) from Coatzacoalcos in the Mexican state of Vera
Cruz, to beyond Merida in the Mexican state of Yucatan. Principal commodities
hauled on the line include cement, silica sand and various agricultural
products. The two railroads are connected via trackage rights over Ferrosur (a
recently privatized rail concession) and a government-owned line. FCCM began
operations on September 1, 1999.
Australia Favorable Income Tax Legislation
In the third quarter of 1999, the Australian government enacted an income tax
law that, for assets acquired from a tax-exempt entity, impacts the depreciable
basis of those assets. The impact of the new law on the Company's Australian
operation is that it will be able to deduct, for income tax purposes,
depreciation in excess of the financial reporting basis of certain fixed assets
acquired from the government in November 1997. However, management estimates
that it is more likely than not that the Company will be unable to fully realize
all of the potential income tax benefits and accordingly, has established a
partial valuation allowance against the deferred tax assets recorded pursuant to
the tax law change. Accordingly, the net income tax benefit recorded in the 1999
third quarter as a result of this tax law change was $4.2 million. Management's
assessment of the likelihood of realizing the full benefit of this incremental
tax depreciation included a review of the Australian operation's forecasted
results for the next several years which indicated that, with the additional tax
depreciation deductions and other accelerated deductions for income tax
purposes, this operation would not likely realize this tax benefit.
The Australian government has also announced proposed legislation that would
decrease the corporate income tax rate from its current level of 36% to 34% for
the year beginning January 1, 2000 and 30% for the years beginning January 1,
2001 and thereafter. Pursuant to current accounting regulations, the Company
must recognize the impact of this second tax law change when such law is
enacted, which is expected in 2000. Had the proposed law been enacted as of
September 30, 1999, the estimated decrease in the Australian operation's net
deferred income tax assets would have been approximately $157,000. The actual
impact will be recorded as additional income tax expense in the quarter that the
new law is enacted.
Credit Facilities
On August 17, 1999, the Company amended and restated its credit facilities
agreement to provide for an increase from $65.0 million to $150.0 million.
13
<PAGE>
The agreement provides for $88.0 million in revolving credit facilities and
$62.0 million in term loan facilities. The revolving credit facility provides
for a sub limit of $15.0 million in Australian dollar equivalents to be
allocated to the Australian subsidiaries. The amended and restated credit
facilities agreement also provides for a U.S. Term Loan facility in the amount
of $10.0 million, a Canadian Term Loan facility in the Canadian Dollar
Equivalent of $22.0 million, and a Mexican Term Loan facility of $30.0 million.
The facility has a maturity date of August 17, 2004. The credit facilities
accrue interest at various rates depending on which country the funds are drawn
in, plus the applicable margin, which varies from 1.75% to 2.5% depending upon
which country the funds are drawn in and the Company's funded debt to EBITDA
ratio, as defined in the agreement. Interest is payable in arrears based on
certain elections of the Company, not to exceed three months outstanding. The
Company pays a commitment fee which varies between 0.375% and 0.500% per annum
on all unused portions of the revolving credit facility depending on the
Company's funded debt to EBITDA ratio. The credit facilities agreement requires
mandatory prepayments from the issuance of new equity or debt and annual sale of
assets in excess of varying minimum amounts depending in which country the sales
occur. The credit facilities are secured by essentially all the assets of the
Company. The credit facilities agreement requires the maintenance of certain
covenant ratios or amounts, including, but not limited to, funded debt to
EBITDA, minimum EBITDA for a period, cash flow coverage, and Net Worth, all as
defined in the agreement.
Genesee Rail-One Inc.
On April 15, 1999, the Company closed on an agreement to acquire Rail-One Inc.
("Rail-One") which has a 47.5% ownership interest in Genesee Rail-One Inc.
("GRO") thereby increasing the Company's ownership of GRO to 95%. GRO owns and
operates two short line railroads in Canada. Under the terms of the purchase
agreement, the Company converted outstanding notes receivable from Rail-One of
$4.6 million, will pay approximately $844,000 in cash to the owners of Rail-One
in installments over a four year period, and granted options to the owners of
Rail-One to purchase up to 80,000 shares of the Company's Class A Common Stock
at an exercise price of $8.62 per share. Exercise of the option is contingent on
the Company's recovery of its capital investment in GRO including debt assumed
if the Company were to sell GRO, and upon certain GRO income performance
measures. The transaction is accounted for as a purchase and resulted in $2.2
million of goodwill which is being amortized over 15 years. The contingent
purchase price will be recorded as a component of goodwill at the value of the
options issued, if and when such options are exercisable. Effective with this
agreement, the operating results of GRO have been consolidated within the
financial statements of the Company, with a 5% minority interest due to another
GRO shareholder. Prior to April 15, 1999, the Company accounted for its
investment in GRO under the equity method.
Year 2000 Compliance
In late 1997, the Company began a comprehensive initiative to address and
resolve potential exposure associated with the functioning of its information
systems and non-information technology systems that include embedded technology
with respect to dates in the Year 2000 and beyond.
This initiative led to the development of the GWI Year 2000 Project Handbook.
The Handbook was developed to report industry Year 2000 methods and standards,
and document "best practices" for each of the Company's subsidiaries. Its
purpose is to promote consistent implementation of the Year 2000 Project and
encourage cost-effective practices and efficient use of resources.
14
<PAGE>
The Year 2000 Project Handbook contains information useful to managers, system
analysts, and other technical staff members, including consultants and business
partners. It is meant to be used as a reference throughout the Year 2000 design,
modification, testing, and implementation phases. The Handbook addresses most of
the obstacles the Company may face and their potential solutions, including
project management issues, contracting and staffing, interface and data exchange
standards, and test and development methodologies.
Three major categories of systems addressed by the Company's Year 2000
Initiative are railroad operations/management systems, business systems and
non-information technology systems.
All of the Company's railroad operations and management processes are
supported through licensed third party development and contracted operations.
These systems are third party certified Year 2000 compliant. With respect to
electronic commerce transmissions, the Company is currently capable of
supporting certain Year 2000 compliant EDI (4010) transactions. Remaining Year
2000 compliant EDI transactions will be implemented according to industry-wide
schedules. Full EDI compliance is expected during the fourth quarter of 1999.
Because the potential exists that not all of the Company's trading partners will
achieve Year 2000 compliance, the Company's operational systems will accommodate
non-Year 2000 electronic commerce transmissions as well as Year 2000 ready
transmissions.
All of the Company's financial, purchasing, inventory, asset management,
payroll and human resource systems supporting business operations are third
party systems. The third party vendors have certified all packages to be Year
2000 compliant.
With respect to non-information technology systems (e.g. fire and security,
HVAC, etc.) that may impact operations and/or business processes, the Company
has conducted initial assessments of its rail yard and office facilities and
found no major Year 2000 problems or obstacles.
As part of its Year 2000 initiative, the Company is in communication with its
interline carriers, significant suppliers, large customers and financial
institutions to assess their Year 2000 readiness and expects to conduct
interface tests with its external trading partners in 1999 upon completion of
internal testing of remediated applications.
To date, the Company has expended less than $50,000 on its Year 2000
initiative and remaining costs are expected to be minimal. Overall, the
Company's Year 2000 initiative is proceeding on schedule with completion of all
areas expected by late-1999.
Failure to achieve Year-2000 compliance by the Company, other railroads, its
suppliers, and its customers could negatively affect the Company's ability to
conduct business for an extended period. Management believes that the Company
will be successful in its Year 2000 conversion; however, there can be no
assurance that other companies on which the Company's systems and operations
rely will be converted on a timely basis, and such failure could have a material
adverse effect on the Company's financial position, results of operations, or
liquidity.
The remainder of this page is intentionally left blank.
15
<PAGE>
Results of Operations
Three Months Ended September 30, 1999 Compared to Three Months Ended September
30, 1998
Consolidated Operating Revenues
Operating revenues were $45.1 million in the quarter ended September 30, 1999
compared to $34.8 million in the quarter ended September 30, 1998, a net
increase of $10.4 million or 29.8%. The net increase was attributable to a $10.5
million increase in North American railroad revenues of which $6.4 million were
revenues from new railroad operations in Canada and $1.8 million were revenues
from new railroad operations in Mexico, and a $535,000 increase in revenues from
Australian railroad operations, offset by a $665,000 decrease in industrial
switching revenues.
The following three sections provide information on railroad revenues for
North American and Australian railroad operations, and industrial switching
revenues in the United States.
North American Railroad Operating Revenues (U. S. Dollars)
Operating revenues were $31.7 million in the quarter ended September 30, 1999
compared to $21.2 million in the quarter ended September 30, 1998, an increase
of $10.5 million or 49.4%. The increase was attributable to a $10.1 million
increase in freight revenues and $384,000 increase in non-freight revenues. The
increase of $10.1 million in North American freight revenues was due to $5.1
million in new freight revenues attributable to new railroad operations in
Canada, $1.2 million in new freight revenues attributable to new railroad
operations in Mexico, and an increase of $3.8 million in freight revenues on
existing railroad operations. The following table compares North American
freight revenues, carloads and average freight revenues per carload for the
quarters ended September 30, 1999 and 1998:
The remainder of this page is intentionally left blank.
16
<PAGE>
North American Freight Revenues and Carloads Comparison by Commodity Group
Quarters Ended September 30, 1999 and 1998
(dollars in thousands, except average per carload)
<TABLE>
<CAPTION>
Average
Freight
Revenues
Per
Freight Revenues Carloads Carload
---------------- -------- -------
Commodity Group % of % of % of % of
- --------------- 1999 Total 1998 Total 1999 Total 1998 Total 1999 1998
---- ----- ---- ----- ---- ----- ---- ----- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Coal, Coke
& Ores $ 6,826 26.9% $ 3,653 23.8% 24,221 30.4% 15,217 30.4% $282 $240
Pulp & Paper 4,229 16.6% 1,927 12.6% 11,297 14.2% 4,927 9.9% 374 391
Petroleum
Products 2,384 9.4% 1,806 11.8% 4,849 6.1% 3,818 7.6% 492 473
Lumber & Forest
Products 2,328 9.2% 1,675 10.9% 8,029 10.1% 5,735 11.5% 290 292
Metals 2,316 9.1% 1,021 6.7% 8,493 10.7% 3,539 7.1% 273 288
Minerals & Stone 2,164 8.5% 991 6.5% 7,334 9.2% 3,668 7.3% 295 270
Chemicals &
Plastics 2,150 8.5% 1,709 11.2% 4,144 5.2% 3,425 6.8% 519 499
Farm & Food
Products 1,192 4.7% 1,165 7.6% 4,255 5.3% 4,211 8.4% 280 277
Autos & Auto
Parts 436 1.7% 361 2.4% 825 1.0% 730 1.5% 528 495
Other 1,394 5.4% 1,009 6.5% 6,223 7.8% 4,741 9.5% 224 213
-------------------------------------------------------------------------------------
Total $25,419 100.0% $15,317 100.0% 79,670 100.0% 50,011 100.0% 319 306
=====================================================================================
</TABLE>
Coal increased by $3.2 million or 86.8% of which $3.1 million was on existing
railroad operations and $72,000 was new freight revenues attributable to the
acquisition of GRO. The increase on existing railroad operations in the third
quarter of 1999 was primarily attributable to a return to normalized shipments
at a key customer's facilities which compare to reduced shipments in the third
quarter of 1998 due to scheduled inventory reductions and planned maintenance
projects at the key customer's facilities.
Pulp and Paper increased by $2.3 million or 119.4% of which $222,000 was on
existing railroad operations, $2.1 million was new freight revenues attributable
to the acquisition of GRO, and $26,000 was new freight revenues attributable to
new railroad operations in Mexico.
Metals increased by $1.3 million or 126.8% of which $339,000 was an increase
on existing railroad operations, $924,000 was new freight revenues attributable
to the acquisition of GRO, and $32,000 was new freight revenues attributable to
new railroad operations in Mexico.
Minerals and Stone increased by $1.2 million or 118.3% of which $91,000 was an
increase on existing railroad operations, $615,000 was new freight revenues
attributable to the acquisition of GRO, and $467,000 was new freight revenues
attributable to new railroad operations in Mexico.
Freight revenues from all remaining commodities reflected an increase of $2.2
million or 27.9% of which $46,000 was a decrease on existing railroad
operations,
17
<PAGE>
$1.5 million was new freight revenues attributable to the acquisition of GRO,
and $722,000 was new freight revenues attributable to new railroad operations in
Mexico.
Total North American carloads were 79,670 in the quarter ended September 30,
1999 compared to 50,011 in the quarter ended September 30, 1998, an increase of
29,659 or 59.3%. The increase of 29,659 consisted of an increase of 11,583
carloads on existing railroad operations of which 8,726 were coal, 15,947
carloads attributable to the acquisition of GRO, and 2,129 carloads attributable
to new railroad operations in Mexico.
The overall average revenue per carload increased to $319 in the quarter ended
September 30, 1999, compared to $306 per carload in the quarter ended September
30, 1998, an increase of 4.2% due primarily to higher per carload revenues
attributable to Canada and Mexico carloads combined with a slight increase on
existing railroad operations carloads.
North American non-freight railroad revenues were $6.3 million in the quarter
ended September 30, 1999 compared to $5.9 million in the quarter ended September
30, 1998, an increase of $384,000 or 6.5%. The increase is the net result of a
decrease of $1.0 million on non-freight revenues on existing railroad operations
due primarily to a decrease in car hire and rental revenues, $1.2 million of new
non-freight revenues attributable to the acquisition of GRO, and $189,000 of new
non-freight revenues attributable to Mexico.
Australian Operating Revenues (U.S. Dollars)
Operating revenues were $10.9 million in the quarter ended September 30, 1999,
compared to $10.3 million in the quarter ended September 30, 1998, an increase
of $535,000 or 5.1%. The increase was the result of an increase in freight
revenues from Australian railroad operations of $474,000 or 5.0% and an increase
in non-freight revenues of $61,000 or 6.3%.
Australian freight revenues were $9.8 million in the quarter ended September
30, 1999, compared to $9.4 million in the quarter ended September 30, 1998, an
increase of $474,000 or 5.0%. The following table outlines Australian freight
revenues for the quarters ended September 30, 1999 and 1998:
The remainder of this page is intentionally left blank.
18
<PAGE>
Australian Freight Revenues by Commodity
Quarters Ended September 30, 1999 and 1998
(in thousands)
<TABLE>
<CAPTION>
Average
Freight
Revenues
Per
Freight Revenues Carloads Carload
---------------- -------- -------
Commodity Group %of % of % of % of
--------------- 1999 Total 1998 Total 1999 Total 1998 Total 1999 1998
------------------------------------------------------------------------------------------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Hook and Pull
(Haulage) $4,190 42.6% $3,478 37.2% 12,897 31.6% 9,756 22.9% $325 $356
Grain 3,714 37.8% 2,730 29.2% 12,549 30.7% 8,952 21.0% 296 274
Coal --- 0.0% 1,846 19.7% --- 0.0% 12,335 28.9% --- 150
Gypsum 890 9.0% 552 5.9% 11,882 29.1% 7,433 17.4% 75 74
Marble 543 5.5% 457 4.9% 2,214 5.4% 2,053 4.8% 245 223
Lime 497 5.1% 265 2.8% 1,333 3.2% 920 4.7% 372 288
Other 2 0.0% 34 0.3% --- 0.0% 40 0.3% --- 850
-----------------------------------------------------------------------------------
Total $ 9,836 100.0% $ 9,362 100.0% 40,875 100.0% 41,489 100.0% 241 226
===================================================================================
</TABLE>
The net increase of $474,000 in Australian freight revenues was primarily
attributable to increases in freight revenues from the shipment of Grain of
$984,000, Hook and Pull of $712,000 and all other non-coal commodities of
$624,000 which offset a decrease in freight revenues from coal of $1.8 million.
There were no freight revenues from coal in the quarter ended September 30,
1999, due to the non-renewal of a coal contract.
Australia carloads were 40,875 in the quarter ended September 30, 1999
compared to 41,489 in the quarter ended September 30, 1998, a net decrease of
614 or 1.5%. The net decrease of 614 was primarily the result of a decrease in
coal carloads of 12,335 offset by increases in Hook and Pull of 3,141, Grain of
3,597, and all other commodities of 4,983.
The overall average revenue per carload increased to $241 in the quarter ended
September 30, 1999, compared to $226 per carload in the quarter ended September
30, 1998, an increase of 6.6% due primarily to the decrease in the lower revenue
per car from coal.
Australian non-freight revenues were $1.0 million in the quarter ended
September 30, 1999, compared to $963,000 in the quarter ended September 30,
1998, an increase of $61,000 or 6.3%.
Industrial Switching Revenues
Revenues from U.S. industrial switching activities were $2.5 million in the
quarter ended September 30, 1999 compared to $3.2 million in the quarter ended
September 30, 1998, a decrease of $665,000 or 21.0% due primarily to the
Company's decision to exit unprofitable switching contracts.
19
<PAGE>
Consolidated Operating Expense
Operating expenses for all operations combined were $38.7 million in the
quarter ended September 30, 1999, compared to $30.6 million in the quarter ended
September 30, 1998, an increase of $8.1 million or 26.6%. Expenses attributable
to North American railroad operations were $26.9 million in the quarter ended
September 30, 1999, compared to $18.8 million in the quarter ended September 30,
1998, an increase of $8.1 million or 43.6% of which $5.7 million were expenses
attributable to new railroad operations in Canada, $1.9 million were expenses
attributable to new railroad operations in Mexico and $508,000 were expenses
attributable to existing U.S. railroad operations. Expenses attributable to
operations in Australia were $9.2 million in the quarter ended September 30,
1999, compared to $8.2 million in the quarter ended September 30, 1998, an
increase of $1.0 million or 12.8%. Expenses attributable to U.S. industrial
switching were $2.6 million in the quarter ended September 30, 1999, compared to
$3.6 million in the quarter ended September 30, 1998, a decrease of $1.0 million
or 29.6%.
The following three sections provide information on railroad expenses for
North American and Australian railroad operations, and industrial switching
expenses in the United States.
North American Railroad Operating Expenses (U. S. Dollars)
The following table sets forth a comparison of the Company's North American
railroad operating expenses in the quarters ended September 30, 1999 and 1998:
North American Railroad
Operating Expense Comparison
Quarters Ended September 30, 1999 and 1998
(dollars in thousands)
<TABLE>
<CAPTION>
1999 1998
---- ----
$ % of Operating $ % of Operating
Revenue Revenue
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
Labor and benefits $9,674 30.5% $ 7,794 36.7%
- -------------------------------------------------------------------------------------------------------------------------------
Equipment rents 3,685 11.6% 2,917 13.7%
- -------------------------------------------------------------------------------------------------------------------------------
Purchased services 2,258 7.1% 1,192 5.6%
- -------------------------------------------------------------------------------------------------------------------------------
Depreciation and amortization 2,316 7.3% 1,863 8.8%
- -------------------------------------------------------------------------------------------------------------------------------
Diesel fuel 1,553 4.9% 698 3.3%
- -------------------------------------------------------------------------------------------------------------------------------
Casualties and insurance 949 3.0% 1,009 4.8%
- -------------------------------------------------------------------------------------------------------------------------------
Materials 2,055 6.5% 795 3.7%
- -------------------------------------------------------------------------------------------------------------------------------
Other expenses 4,459 14.1% 2,504 11.9%
--------- --------- --------- ---------
- -------------------------------------------------------------------------------------------------------------------------------
Total operating expenses $26,949 85.0% $18,772 88.5%
- -------------------------------------------------------------------------------------------------------------------------------
========= ========= ========= =========
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Labor and benefits expense was $9.7 million in the quarter ended September 30,
1999 compared to $7.8 million in the quarter ended September 30, 1998, a net
increase of $1.9 million or 24.1% of which $1.7 million was attributable to the
acquisition of GRO, $584,000 was attributable to new railroad operations in
Mexico and $394,000 was attributable to a decrease on existing railroad
operations.
20
<PAGE>
Equipment rents were $3.7 million in the quarter ended September 30, 1999
compared to $2.9 million in the quarter ended September 30, 1998, a net increase
of $768,000 or 26.3% of which $1.3 million was attributable to the acquisition
of GRO and $557,000 was attributable to a decrease on existing railroad
operations.
Purchased services were $2.3 million in the quarter ended September 30, 1999
compared to $1.2 million in the quarter ended September 30, 1998, a net increase
of $1.1 million or 89.4% of which $871,000 was attributable to the acquisition
of GRO, $136,000 was attributable to new railroad operations in Mexico and
$59,000 was attributable to an increase on existing railroad operations.
Diesel fuel expense was $1.6 million in the quarter ended September 30, 1999
compared to $698,000 in the quarter ended September 30, 1998, an increase of
$855,000 or 122.5% of which $476,000 was attributable to the acquisition of GRO,
$116,000 was attributable to new railroad operations in Mexico and $263,000 was
attributable to an increase on existing railroad operations.
Materials expense was $2.1 million in the quarter ended September 30, 1999
compared to $795,000 in the quarter ended September 30, 1998, an increase of
$1.3 million or 158.5% of which $287,000 was attributable to the acquisition of
GRO, $123,000 was attributable to new railroad operations in Mexico and $850,000
was attributable to an increase on existing railroad operations.
All other expenses combined were $9.3 million in the quarter ended September
30, 1999 compared to $6.1 million in the quarter ended September 30, 1998, an
increase of $3.2 million or 52.7% of which $1.1 million was attributable to the
acquisition of GRO, $980,000 was attributable to new railroad operations in
Mexico and $1.1 million was attributable to an increase on existing railroad
operations.
Australian Railroad Operating Expenses (U.S. Dollars)
The following table sets forth a comparison of the Company's Australian
railroad operating expenses in the quarters ended September 30, 1999 and 1998:
Australian Railroad Operations
Operating Expense Comparison
Quarters Ended September 30, 1999 and 1998
(dollars in thousands)
<TABLE>
<CAPTION>
1999 1998
---- ----
$ % of Operating $ % of Operating
Revenue Revenue
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
Labor and benefits $1,473 13.6% $ 1,216 11.8%
- -------------------------------------------------------------------------------------------------------------------------------
Equipment rents 139 1.3% 125 1.2%
- -------------------------------------------------------------------------------------------------------------------------------
Purchased services 3,003 27.7% 2,489 24.1%
- -------------------------------------------------------------------------------------------------------------------------------
Depreciation and amortization 554 5.1% 495 4.8%
- -------------------------------------------------------------------------------------------------------------------------------
Diesel fuel 2,021 18.6% 1,934 18.7%
- -------------------------------------------------------------------------------------------------------------------------------
Casualties and insurance 302 2.8% 359 3.5%
- -------------------------------------------------------------------------------------------------------------------------------
Materials 449 4.1% 376 3.6%
- -------------------------------------------------------------------------------------------------------------------------------
Other expenses 1,256 11.5% 1,156 11.2%
- -------------------------------------------------------------------------------------------------------------------------------
--------- --------- --------- ---------
- -------------------------------------------------------------------------------------------------------------------------------
Total operating expenses $ 9,197 84.7% $ 8,150 78.9%
- -------------------------------------------------------------------------------------------------------------------------------
========= ========= ========= =========
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
21
<PAGE>
Purchased services were $3.0 million in the quarter ended September 30, 1999
compared to $2.5 million in the quarter ended September 30, 1998, an increase of
$514,000 or 20.7%, due primarily to an increase in contract maintenance work on
freight cars (wagons) and locomotives.
All other operating expenses were $6.2 million in the quarter ended September
30, 1999 compared to $5.7 million in the quarter ended September 30, 1998, an
increase of $533,000 or 9.4%, due primarily to an increase in freight volumes.
U. S. Industrial Switching Operating Expenses
The following table sets forth a comparison of the Company's U.S. industrial
switching operating expenses in the quarters ended September 30, 1999 and 1998:
U.S. Industrial Switching
Operating Expense Comparison
Quarters Ended September 30, 1999 and 1998
(dollars in thousands)
<TABLE>
<CAPTION>
% of Operating % of Operating
1999 Revenue 1998 Revenue
---- ----
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
Labor and benefits $ 1,898 76.1% $ 2,460 77.8%
- -------------------------------------------------------------------------------------------------------------------------------
Equipment rents 45 1.8% 57 1.8%
- -------------------------------------------------------------------------------------------------------------------------------
Purchased services 154 6.2% 84 2.7%
- -------------------------------------------------------------------------------------------------------------------------------
Depreciation and amortization 170 6.8% 202 6.4%
- -------------------------------------------------------------------------------------------------------------------------------
Diesel fuel 95 3.8% 106 3.4%
- -------------------------------------------------------------------------------------------------------------------------------
Casualties and insurance 98 3.9% 94 3.0%
- -------------------------------------------------------------------------------------------------------------------------------
Materials 139 5.6% 188 5.9%
- -------------------------------------------------------------------------------------------------------------------------------
Other expenses (33) -1.4% 456 14.4%
- -------------------------------------------------------------------------------------------------------------------------------
--------- --------- --------- ---------
- -------------------------------------------------------------------------------------------------------------------------------
Total operating expenses $ 2,566 102.8% $ 3,647 115.4%
- -------------------------------------------------------------------------------------------------------------------------------
========= ========= ========= =========
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Labor and benefits expense was $1.9 million in the quarter ended September 30,
1999 compared to $2.5 million in the quarter ended September 30, 1998, a
decrease of $562,000 or 22.8%, due primarily to the decision to exit
unprofitable switching contracts.
Other expense was a credit of $33,000 in the quarter ended September 30, 1999
compared to $456,000 in the quarter ended September 30, 1998, a decrease of
$489,000 or 107.2%. The credit balance reflects the reclassification of
administrative expense that had been classified as railroad operations expense
in prior periods.
Operating Ratios
The Company's combined operating ratio decreased to 85.9% in the quarter ended
September 30, 1999 from 88.1% in the quarter ended September 30, 1998. The
operating ratio for North American railroad operations decreased to 85.0% in the
quarter ended September 30, 1999 from 88.5% in the quarter ended September 30,
1998. The operating ratio for Australian railroad operations increased to 84.7%
in the quarter ended September 30, 1999 from 78.9% in the quarter ended
September 30, 1998. The operating ratio for U.S. industrial switching operations
decreased to 102.8% in
22
<PAGE>
the quarter ended September 30, 1999 from 115.4% in the quarter ended September
30, 1998.
Interest Expense and Income Taxes
Interest expense in the quarter ended September 30, 1999 was $2.3 million
compared to $1.8 million in the quarter ended September 30, 1998, an increase of
$522,000 or 29.6% primarily related to the increase in debt used for
acquisitions. The Company's effective income tax rate in the quarter ended
September 30, 1999, was (53.2)% (primarily due to a favorable tax law change in
Australia) which compared to 43.3% in the quarter ended September 30, 1998.
Net Income
The Company's net income in the quarter ended September 30, 1999 was $6.7
million (including $4.2 million of income tax benefit from a tax law change as
discussed in Note 2. To the Consolidated Financial Statements) compared to net
income of $1.4 million in the quarter ended September 30, 1998, an increase of
$5.3 million or 376.9%. The increase in net income is the net result of an
increase in net income from North American railroad operations of $1.1 million,
an increase in net income from Australian railroad operations of $4.0 million,
and a decrease in the net loss of industrial switching of $236,000.
Nine months Ended September 30, 1999 Compared to Nine months Ended September 30,
1998
Consolidated Operating Revenues
Operating revenues were $121.9 million in the nine months ended September 30,
1999 compared to $109.5 million in the nine months ended September 30, 1998, a
net increase of $12.4 million or 11.3%. The net increase was attributable to a
$15.6 million increase in North American railroad revenues of which $12.3
million were revenues from new railroad operations in Canada, $1.8 million were
revenues from new railroad operations in Mexico and $1.5 million were increases
in revenues on existing North America railroad operations, offset by a $2.3
million decrease in revenues from Australian railroad operations and a $875,000
decrease in industrial switching revenues.
The following three sections provide information on railroad revenues for
North American and Australian railroad operations, and industrial switching
revenues in the United States.
North American Railroad Operating Revenues (U. S. Dollars)
Operating revenues were $80.7 million in the nine months ended September 30,
1999 compared to $65.1 million in the nine months ended September 30, 1998, an
increase of $15.6 million or 23.9%. The increase was attributable to a $14.4
million increase in freight revenues and $1.2 million increase in non-freight
revenues. The increase of $14.4 million in North American freight revenues was
due to $9.7 million in new freight revenues attributable to new railroad
operations in Canada, $1.2 million in new freight revenues attributable to new
railroad operations in Mexico, and an increase of $3.5 million in freight
revenues on existing railroad operations. The following table compares North
American freight revenues, carloads and average freight revenues per carload for
the nine months ended September 30, 1999 and 1998:
23
<PAGE>
North American Freight Revenues and Carloads Comparison by Commodity Group
Nine Months Ended September 30, 1999 and 1998
(dollars in thousands, except average per carload)
<TABLE>
<CAPTION>
Average
Freight
Revenues
Per
Freight Revenues Carloads Carload
---------------- -------- --------
Commodity Group
- --------------- % of % of % of % of
1999 Total 1998 Total 1999 Total 1998 Total 1999 1998
---- ----- ---- ----- ---- ----- ---- ----- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Coal, Coke &
Ores $16,414 26.0% $13,698 28.1% 60,641 30.1% 54,506 33.5% $271 $251
Pulp & Paper 10,223 16.2% 6,345 13.0% 27,398 13.6% 16,294 10.0% 373 389
Petroleum Products 6,277 9.9% 5,562 11.4% 13,525 6.7% 12,537 7.7% 242 444
Lumber & Forest
Products 6,218 9.8% 4,647 9.5% 20,949 10.4% 15,752 9.7% 297 295
Chemicals-Plastics 6,200 9.8% 4,786 9.8% 12,123 6.0% 9,327 5.7% 511 513
Metals 5,705 9.0% 3,929 8.1% 21,330 10.6% 14,290 8.8% 267 275
Minerals & Stone 3,925 6.2% 2,716 5.6% 14,892 7.4% 9,757 6.0% 264 278
Farm & Food Products 3,351 5.3% 3,164 6.5% 11,977 5.9% 11,442 7.0% 280 277
Autos & Auto Parts 1,687 2.7% 1,428 2.9% 3,286 1.6% 2,839 1.7% 513 503
Other 3,132 5.1% 2,472 5.1% 15,613 7.7% 16,170 9.9% 201 153
--------------------------------------------------------------------------------------
Totals $63,132 100.0% $48,747 100.0% 201,734 100.0% 162,914 100.0% 313 299
======================================================================================
</TABLE>
Coal increased by $2.7 million or 19.8% of which $2.6 million was on existing
railroad operations and $127,000 was new freight revenues attributable to the
acquisition of GRO. The increase on existing railroad operations in the first
nine months of 1999 was primarily attributable to a return to normalized
shipments at a key customer's facilities which compare to reduced shipments in
the 1998 period due to scheduled inventory reductions and planned maintenance
projects at the key customer's facilities.
Pulp and Paper increased by $3.9 million or 61.1% of which $83,000 was on
existing railroad operations, $3.8 million was new freight revenues attributable
to the acquisition of GRO, and $26,000 was new freight revenues attributable to
new railroad operations in Mexico.
Lumber and Forest Products increased by $1.6 million or 33.8% of which
$743,000 was on existing railroad operations, $819,000 was new freight revenues
attributable to the acquisition of GRO, and $9,000 was new freight revenues
attributable to new railroad operations in Mexico.
Chemical and Plastics increased by $1.4 million or 29.5% of which $446,000 was
on existing railroad operations, $903,000 was new freight revenues attributable
to the acquisition of GRO, and $65,000 was new freight revenues attributable to
new railroad operations in Mexico.
Metals increased by a net $1.8 million or 45.2% of which $150,000 was a
decrease on existing railroad operations, $1.9 million was new freight revenues
attributable
24
<PAGE>
to the acquisition of GRO, and $32,000 was new freight revenues attributable to
new railroad operations in Mexico.
Minerals and Stone increased by a net $1.2 million or 44.5% of which $339,000
was a decrease on existing railroad operations, $1.1 million was new freight
revenues attributable to the acquisition of GRO, and $467,000 was new freight
revenues attributable to new railroad operations in Mexico.
Freight revenues from all remaining commodities reflected an increase of $1.8
million or 14.4% of which $78,000 was an increase on existing railroad
operations, $1.1 million was new freight revenues attributable to the
acquisition of GRO, and $648,000 was new freight revenues attributable to new
railroad operations in Mexico.
Total North American carloads were 201,734 in the nine months ended September
30, 1999 compared to 162,914 in the nine months ended September 30, 1998, an
increase of 38,820 or 23.8%. The increase of 38,820 consisted of an increase of
7,012 carloads on existing railroad operations of which 5,644 were coal, 29,679
carloads attributable to the acquisition of GRO, and 2,129 carloads attributable
to new railroad operations in Mexico.
The overall average revenue per carload increased to $313 in the nine months
ended September 30, 1999, compared to $299 per carload in the nine months ended
September 30, 1998, an increase of 4.7% due primarily to higher per carload
revenues attributable to Canada and Mexico carloads combined with a slight
increase on existing railroad operations carloads.
North American non-freight railroad revenues were $17.6 million in the nine
months ended September 30, 1999 compared to $16.4 million in the nine months
ended September 30, 1998, an increase of $1.2 million or 7.2%. The increase is
the net result of a decrease of $1.6 million on non-freight revenues on existing
railroad operations, $2.6 million of new non-freight revenues attributable to
the acquisition of GRO, and $189,000 of new non-freight revenues attributable to
Mexico.
Australian Operating Revenues (U.S. Dollars)
Operating revenues were $32.4 million in the nine months ended September 30,
1999, compared to $34.7 million in the nine months ended September 30, 1998, a
decrease of $2.3 million or 6.6%. The decrease was the result of a decrease in
freight revenues from Australian railroad operations of $1.8 million or 5.9% and
a decrease in non-freight revenues of $455,000 or 12.2%.
Australian freight revenues were $29.2 million in the nine months ended
September 30, 1999, compared to $31.0 million in the nine months ended September
30, 1998, a decrease of $1.8 million or 5.9%. The following table outlines
Australian freight revenues for the nine months ended September 30, 1999 and
1998:
The remainder of this page is intentionally left blank.
25
<PAGE>
Australian Freight Revenues by Commodity
Nine Months Ended September 30, 1999 and 1998
(in thousands)
<TABLE>
<CAPTION>
????
Average
Freight
Revenues
Per
Freight Revenues Carloads Carload
Commodity Group ---------------- -------- -------
--------------- % of % of % of % of
1999 Total 1998 Total 1999 Total 1998 Total 1999 1998
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Hook and Pull
(Haulage) $13,446 46.1% $11,355 36.6% 39,908 33.1% 30,289 22.7% $337 $375
Grain 10,218 35.0% 9,202 29.7% 37,307 31.0% 31,352 23.5% 274 294
Coal 664 2.3% 5,702 18.4% 4,317 3.6% 36,261 27.1% 154 157
Gypsum 2,199 7.5% 2,093 6.8% 29,531 24.5% 26,522 19.8% 74 79
Marble 1,502 5.2% 1,467 4.7% 6,151 5.1% 6,200 4.6% 244 237
Lime 1,120 3.8% 789 2.5% 3,201 2.7% 1,649 1.2% 350 478
Other 9 0.1% 392 1.3% 0.0% 1,376 1.1% --- 285
---------- ---------- ---------- --------- ---------- -------- ---------- ---------
Total $29,158 100.0% $31,000 100.0% 120,415 100.0% 133,649 100.0% 242 232
========== ========== ========== ========= ========== ======== ========== =========
</TABLE>
The net decrease of $1.8 million in Australian freight revenues was primarily
attributable to increases in freight revenues from the shipment of Grain of $1.0
million, Hook and Pull of $2.1 million and all other non-coal commodities of
$89,000 which offset a decrease in freight revenues from coal of $5.0 million.
The decrease in freight revenues from coal in the nine months ended September
30, 1999, was due to the non-renewal of a coal contract.
Australia carloads were 120,415 in the nine months ended September 30, 1999
compared to 133,649 in the nine months ended September 30, 1998, a decrease of
13,234 or 9.9%. The decrease of 13,234 was primarily the result of a decrease in
coal carloads of 31,944 offset by increases in Hook and Pull of 9,619, Grain of
5,955, and all other commodities of 3,136.
The overall average revenue per carload increased to $242 in the nine months
ended September 30, 1999, compared to $232 per carload in the nine months ended
September 30, 1998, an increase of 4.3% due primarily to the decrease in lower
revenue per car from coal.
Australian non-freight revenues were $3.3 million in the nine months ended
September 30, 1999, compared to $3.7 million in the nine months ended September
30, 1998, a decrease of $455,000 or 12.2% due primarily to a decrease in car
hire and rental income.
Industrial Switching Revenues
Revenues from U.S. industrial switching activities were $8.8 million in the
nine months ended September 30, 1999 compared to $9.6 million in the nine months
ended September 30, 1998, a decrease of $875,000 or 9.1% due primarily to the
decision to exit unprofitable switching contracts.
26
<PAGE>
Consolidated Operating Expense
Operating expenses for all operations combined were $107.8 million in the nine
months ended September 30, 1999, compared to $95.7 million in the nine months
ended September 30, 1998, a net increase of $12.1 million or 12.6%. Expenses
attributable to North American railroad operations were $71.2 million in the
nine months ended September 30, 1999, compared to $55.8 million in the nine
months ended September 30, 1998, an increase of $15.4 million or 27.7% of which
$10.7 million were expenses attributable to new railroad operations in Canada,
$1.9 million were expenses attributable to new railroad operations in Mexico and
$2.8 were expenses attributable to existing U.S. railroad operations. Expenses
attributable to operations in Australia were $27.7 million in the nine months
ended September 30, 1999, compared to $28.8 million in the nine months ended
September 30, 1998, a decrease of $1.1 million or 3.7%. Expenses attributable to
U.S. industrial switching were $8.9 million in the nine months ended September
30, 1999, compared to $11.2 million in the nine months ended September 30, 1998,
a decrease of $2.3 million or 20.5%.
The following three sections provide information on railroad expenses for
North American and Australian railroad operations, and industrial switching
expenses in the United States.
North American Railroad Operating Expenses (U. S. Dollars)
The following table sets forth a comparison of the Company's North American
railroad operating expenses in the nine months ended September 30, 1999 and
1998:
North American Railroad
Operating Expense Comparison
Nine Months Ended September 30, 1999 and 1998
(dollars in thousands)
<TABLE>
<CAPTION>
1999 1998
---- ----
$ % of Operating $ % of Operating
Revenue Revenue
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Labor and benefits $26,815 33.2% $22,782 35.0%
- -------------------------------------------------------------------------------------------------------------------------------
Equipment rents 10,046 12.4% 8,321 12.8%
- -------------------------------------------------------------------------------------------------------------------------------
Purchased services 4,960 6.1% 3,356 5.2%
- -------------------------------------------------------------------------------------------------------------------------------
Depreciation and amortization 6,706 8.3% 5,383 8.3%
------------------------------------------------------------------------------------------------------------------------------
Diesel fuel 3,603 4.5% 2,401 3.7%
- -------------------------------------------------------------------------------------------------------------------------------
Casualties and insurance 2,734 3.4% 2,833 4.3%
- -------------------------------------------------------------------------------------------------------------------------------
Materials 5,136 6.4% 2,618 4.0%
- -------------------------------------------------------------------------------------------------------------------------------
Other expenses 11,188 13.9% 8,063 12.3%
- -------------------------------------------------------------------------------------------------------------------------------
--------- --------- --------- ---------
- -------------------------------------------------------------------------------------------------------------------------------
Total operating expenses $71,188 88.2% $55,757 85.6%
- -------------------------------------------------------------------------------------------------------------------------------
========= ========= ========= =========
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Labor and benefits expense was $26.8 million in the nine months ended
September 30, 1999 compared to $22.8 million in the nine months ended September
30, 1998, an increase of $4.0 million or 17.7% of which $3.1 million was
attributable to the acquisition of GRO, $584,000 was attributable to new
railroad operations in Mexico and $301,000 was attributable to an increase on
existing railroad operations.
27
<PAGE>
Equipment rents were $10.0 million in the nine months ended September 30, 1999
compared to $8.3 million in the nine months ended September 30, 1998, a net
increase of $1.7 million or 20.7% of which $2.6 million was attributable to the
acquisition of GRO and $901,000 was attributable to a decrease on existing
railroad operations.
Purchased services were $5.0 million in the nine months ended September 30,
1999 compared to $3.4 million in the nine months ended September 30, 1998, a net
increase of $1.6 million or 47.8% of which $1.5 million was attributable to the
acquisition of GRO, $136,000 was attributable to new railroad operations in
Mexico and $52,000 was attributable to an increase on existing railroad
operations.
Depreciation and amortization expense was $6.7 million in the nine months
ended September 30, 1999 compared to $5.4 million in the nine months ended
September 30, 1998, an increase of $1.3 million or 24.6% of which $865,000 was
attributable to the acquisition of GRO, $127,000 was attributable to new
railroad operations in Mexico and $331,000 was attributable to an increase on
existing railroad operations.
Diesel fuel expense was $3.6 million in the nine months ended September 30,
1999 compared to $2.4 million in the nine months ended September 30, 1998, an
increase of $1.2 million or 50.1% of which $848,000 was attributable to the
acquisition of GRO, $116,000 was attributable to new railroad operations in
Mexico and $238,000 was attributable to an increase on existing railroad
operations.
Materials expense was $5.1 million in the nine months ended September 30, 1999
compared to $2.6 million in the nine months ended September 30, 1998, an
increase of $2.5 million or 96.2% of which $546,000 was attributable to the
acquisition of GRO, $123,000 was attributable to new railroad operations in
Mexico and $1.8 million was attributable to an increase on existing railroad
operations.
All other expenses combined were $13.9 million in the nine months ended
September 30, 1999 compared to $10.9 million in the nine months ended September
30, 1998, an increase of $3.0 million or 27.8% of which $1.1 million was
attributable to the acquisition of GRO, $853,000 was attributable to new
railroad operations in Mexico and $1.0 million was attributable to an increase
on existing railroad operations.
Australian Railroad Operating Expenses (U.S. Dollars)
The following table sets forth a comparison of the Company's Australian
railroad operating expenses in the nine months ended September 30, 1999 and
1998:
The remainder of this page is intentionally left blank.
28
<PAGE>
Australian Railroad Operations
Operating Expense Comparison
Nine Months Ended September 30, 1999 and 1998
(dollars in thousands)
<TABLE>
<CAPTION>
% of Operating % of Operating
1999 Revenue 1998 Revenue
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Labor and benefits $ 4,282 13.2% $ 3,831 11.0%
- -------------------------------------------------------------------------------------------------------------------------------
Equipment rents 236 0.7% 577 1.7%
- -------------------------------------------------------------------------------------------------------------------------------
Purchased services 8,927 27.5% 10,346 29.8%
- -------------------------------------------------------------------------------------------------------------------------------
Depreciation and amortization 1,583 4.9% 1,375 4.0%
- -------------------------------------------------------------------------------------------------------------------------------
Diesel fuel 5,980 18.4% 6,703 19.3%
- -------------------------------------------------------------------------------------------------------------------------------
Casualties and insurance 1,551 4.8% 1,045 3.0%
- -------------------------------------------------------------------------------------------------------------------------------
Materials 1,308 4.0% 1,278 3.7%
- -------------------------------------------------------------------------------------------------------------------------------
Other expenses 3,826 11.9% 3,606 10.3%
- -------------------------------------------------------------------------------------------------------------------------------
--------- --------- --------- ---------
- -------------------------------------------------------------------------------------------------------------------------------
Total operating expenses $27,693 85.4% $28,761 82.8%
- -------------------------------------------------------------------------------------------------------------------------------
========= ========= ========= =========
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Purchased services were $8.9 million in the nine months ended September 30,
1999 compared to $10.3 million in the nine months ended September 30, 1998, a
decrease of $1.4 million or 13.7%. The decrease was primarily related to the
non-renewal of a coal haulage contract which resulted in no contracted
maintenance charges on the track used for the coal haulage, and capital work on
Company owned tracks which reduced contract labor expense for maintenance.
All other operating expenses were $18.8 million in the nine months ended
September 30, 1999 compared to $18.4 million in the nine months ended September
30, 1998, a net increase of $351,000 or 1.9%.
U. S. Industrial Switching Operating Expenses
The following table sets forth a comparison of the Company's U.S. industrial
switching operating expenses in the nine months ended September 30, 1999 and
1998:
U.S. Industrial Switching
Operating Expense Comparison
Nine Months Ended September 30, 1999 and 1998
(dollars in thousands)
<TABLE>
<CAPTION>
% of Operating % of Operating
1999 Revenue 1998 Revenue
---- ----
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Labor and benefits $ 6,341 72.4% $ 7,378 76.6%
- -------------------------------------------------------------------------------------------------------------------------------
Equipment rents 138 1.6% 140 1.5%
- -------------------------------------------------------------------------------------------------------------------------------
Purchased services 372 4.2% 248 2.6%
- -------------------------------------------------------------------------------------------------------------------------------
Depreciation and amortization 598 6.8% 599 6.2%
- -------------------------------------------------------------------------------------------------------------------------------
Diesel fuel 315 3.6% 352 3.7%
- -------------------------------------------------------------------------------------------------------------------------------
Casualties and insurance 757 8.6% 282 2.9%
- -------------------------------------------------------------------------------------------------------------------------------
Materials 573 6.5% 553 5.7%
- -------------------------------------------------------------------------------------------------------------------------------
Other expenses (183) -2.2% 1,659 17.1%
- -------------------------------------------------------------------------------------------------------------------------------
--------- --------- --------- ---------
- -------------------------------------------------------------------------------------------------------------------------------
Total operating expenses $ 8,911 101.5% $11,211 116.3%
- -------------------------------------------------------------------------------------------------------------------------------
========= ========= ========= =========
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
29
<PAGE>
Labor and benefits expense was $6.3 million in the nine months ended September
30, 1999 compared to $7.4 million in the nine months ended September 30, 1998, a
decrease of $1.1 million or 14.1%, due primarily to the decision to exit
unprofitable switching contracts.
Other expense was a credit of $183,000 in the nine months ended September 30,
1999 compared to $1.7 million in the nine months ended September 30, 1998, a
decrease of $1.8 or 111.0%. The credit balance reflects the reclassification of
administrative expense that had originally been classified as railroad
operations expense. The 1998 period was unusually high due to approximately
$550,000 of legal fees for still-pending litigation.
Operating Ratios
The Company's combined operating ratio increased to 88.4% in the nine months
ended September 30, 1999 from 87.4% in the nine months ended September 30, 1998.
The operating ratio for North American railroad operations increased to 88.2% in
the nine months ended September 30, 1999 from 85.6% in the nine months ended
September 30, 1998. The operating ratio for Australian railroad operations
increased to 85.4% in the nine months ended September 30, 1999 from 82.8% in the
nine months ended September 30, 1998. The operating ratio for U.S. industrial
switching operations decreased to 101.5% in the nine months ended September 30,
1999 from 116.3% in the nine months ended September 30, 1998.
Interest Expense and Income Taxes
Interest expense in the nine months ended September 30, 1999 was $5.6 million
compared to $5.0 million in the nine months ended September 30, 1998, an
increase of $641,000 or 12.9% primarily related to the increase in debt used
for acquisitions. The Company's effective income tax rate in the nine months
ended September 30, 1999, was (6.0)% (primarily due to a favorable tax law
change in Australia) which compared to 41.7% in the nine months ended September
30, 1998.
Net Income
The Company's net income in the nine months ended September 30, 1999 was $9.1
million (including $4.2 million of income tax benefit from a tax law change as
discussed in Note 2. To the Consolidated Financial Statements) compared to net
income of $5.5 million in the nine months ended September 30, 1998, an increase
of $3.6 million or 64.6%. The increase in net income is the net result of a
decrease in net income from North American railroad operations of $1.2 million,
an increase in net income from Australian railroad operations of $4.0 million,
and a decrease in the net loss of industrial switching of $772,000.
Liquidity and Capital Resources
Stock Repurchase - On August 12, 1998, the Company's board of directors
authorized management to repurchase up to one million shares of the Company's
Class A common stock under SEC Rule 10b-18. On May 10, 1999, the Company
completed its purchase of the one million shares authorized by the board of
directors at a total cost of $11.0 million.
During the nine months ended September 30, 1999 the Company generated cash
from operations of $20.3 million, invested $21.8 million in capital assets,
received cash of $57,000 in the purchase of Rail-One Inc. less cash paid for
common stock, invested $30.5 million for the purchase of assets of the
Chiapas-Mayab railway concession, equipment property and other assets from the
state-owned rail company
30
<PAGE>
Ferronales, had a net increase in debt of $59.7 million of which $24.7 was
assumed in the acquisition of GRO, received $298,000 in proceeds from the
disposition of property, and recorded $5.9 million in net proceeds on
governmental grants.
During the nine months ended September 30, 1998 the Company generated cash
from operations of $11.1 million, invested $13.4 million in capital assets, had
a net reduction in debt of $4.5 million and received $2.0 million in proceeds
from the disposition of property.
At September 30, 1999 the Company had long-term debt (including current
portion) totaling $125.4 million, which comprised 61.9% of its total
capitalization. This compares to long-term debt, including current portion, of
$65.7 million at December 31, 1998, comprising 46.8% of total capitalization.
The Company has historically relied primarily on cash generated from
operations to fund working capital and capital expenditures relating to ongoing
operations, while relying on borrowed funds to finance acquisitions and
equipment needs (primarily rolling stock) related to acquisitions. The Company
believes that its cash flow from operations together with amounts available
under its credit facilities will enable the Company to meet its liquidity and
capital expenditure requirements relating to ongoing operations for at least the
duration of its credit facilities.
Forward-Looking Statements
This Report may contain forward-looking statements based on current
expectations, estimates and projections about the Company's industry,
management's beliefs and assumptions made by management. Words such as
"anticipates," "intends," "plans," "believes," "seeks," "estimates," variations
of such words and similar expressions are intended to identify such
forward-looking statements. These statements are no guarantees of future
performance and are subject to certain risks, uncertainties and assumptions that
are difficult to forecast. Therefore, actual results may differ materially from
those expressed or forecast in any such forward-looking statements. Such risks
and uncertainties include, in addition to those set forth in this Item 2, those
noted in the Part II, Item 1 of this Report. The Company undertakes no
obligation to update publicly any forward-looking statements, whether as a
result of new information, future events or otherwise.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
The Company is exposed to the impact of interest rate changes. The Company's
exposure to changes in interest rates applies to its borrowings under a credit
facility and a capital lease arrangement, both of which have variable interest
rates tied to the LIBOR rate. In addition, the Company's Australian subsidiary
has a variable rate loan, one-half of which fluctuates with market changes in
interest rates and one-half of which is fixed at 6.24%. The Australian loan is
denominated in Australian dollars. The Company estimates that the fair value of
these debt instruments approximated their market values and carrying values at
September 30, 1999. The Company invests excess cash in overnight money market
accounts.
31
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
IMRR - On August 6, 1998, a lawsuit was commenced against the Company and its
subsidiary, Illinois & Midland Railroad, Inc. ("IMRR"), by Commonwealth Edison
Company ("ComEd") in the Circuit Court of Cook County, Illinois. The suit
alleges that IMRR is in breach of certain provisions of a stock purchase
agreement entered into by a prior unrelated owner of the IMRR rail line. The
provisions allegedly pertain to limitations on rates received by IMRR and the
unrelated predecessor for freight hauled for ComEd's Powerton plant. The suit
seeks unspecified compensatory damages for alleged past and ongoing rate
overcharges. The Company believes the suit is without merit and intends to
vigorously defend against the suit.
The parent company of ComEd has contracted to sell certain of ComEd's power
facilities, one of which is the Powerton plant served by IMRR under the
provisions of a 1987 Service Assurance Agreement (the "SAA"), entered into by a
prior unrelated owner of the IMRR rail line. The SAA, which is not terminable
except for failure to perform, provides that IMRR has exclusive access to
provide rail service to the Powerton plant. On April 6, 1999, a lawsuit was
commenced by the Company and its subsidiary, IMRR, against ComEd in the Circuit
Court of Sangamon County, Illinois. The suit sought declaration of certain
rights regarding the SAA including declarations that the SAA is not terminable
at will and that ComEd must assign its contractual obligations under the SAA to
the purchaser of the Powerton plant. On June 10, 1999, IMRR's suit against
Com Ed in Sangamon County was voluntarily withdrawn without prejudice in partial
resolution of several procedural motions pending in the Cook County action, and
with the explicit recognition from ComEd that the action may be re-filed in Cook
County.
ComEd is currently IMRR's largest customer and in 1998 the Powerton plant
accounted for 6.3% of the consolidated revenues of the Company and its
subsidiaries. Failure to satisfactorily resolve this litigation could have a
material adverse effect on the Company.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS - NONE
ITEM 3. DEFAULTS UPON SENIOR SECURITIES - NONE
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS - NONE
ITEM 5. OTHER INFORMATION - NONE
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(A). EXHIBITS - SEE INDEX TO EXHIBITS
(B) REPORTS ON FORM 8-K:
No Reports on Form 8-K were filed by the Registrant during the period
covered by this Report.
32
<PAGE>
INDEX TO EXHIBITS
(2) Plan of acquisition, reorganization, arrangement, liquidation or
succession
Not applicable.
(3) (i) Articles of Incorporation
The Form of Restated Certificate of Incorporation referenced under
(4)(a) hereof is incorporated herein by reference.
(ii) By-laws
The By-laws referenced under (4)(b) hereof are incorporated herein by
reference.
(4) Instruments defining the rights of security holders, including
indentures
(a) Form of Restated Certificate of Incorporation (Exhibit 3.2)2
(b) By-laws (Exhibit 3.3)1
(c) Specimen stock certificate representing shares of Class A Common
Stock (Exhibit 4.1)3
(d) Form of Class B Stockholders' Agreement dated as of May 20, 1996,
among the Registrant, its executive officers and its Class B
stockholders (Exhibit 4.2)2
(e) Promissory Note dated October 7, 1991 of Buffalo & Pittsburgh
Railroad, Inc. in favor of CSX Transportation, Inc. (Exhibit 4.6)1
(f) First Amendment to Promissory Note dated as of March 19, 1999
between Buffalo & Pittsburgh Railroad, Inc. and CSX
Transportation, Inc. (Exhibit 4.1)4
*(4.1) Third Amended and Restated Revolving Credit and Term Loan Agreement
dated as of August 17, 1999 among the Registrant, certain subsidiaries,
BankBoston, N.A. and the banks named therein.
(10) Material Contracts
*(10.1) Purchase and Sale Agreement dated August 17, 1999 between the Federal
Government of the United Mexican States, Compania de Ferrocarriles
Chiapas-Mayab, S.A de C.V., and Ferrocarriles Nacionales de Mexico.
*(11.1) Statement re computation of per share earnings
(15) Letter re unaudited interim financial information
33
<PAGE>
Not applicable.
(18) Letter re change in accounting principles
Not applicable.
(19) Report furnished to security holders
Not applicable.
(22) Published report regarding matters submitted to vote of security
holders
Not applicable.
(23) Consents of experts and counsel
Not applicable.
(24) Power of attorney
Not applicable.
*(27) Financial Data Schedule
(99) Additional Exhibits
Not applicable.
- ----------------------------
* Exhibit filed with this Report.
1 Exhibit previously filed as part of, and incorporated herein by
reference to, the Registrant's Registration Statement on Form S-1 (Registration
No. 333-3972). The exhibit number contained in parenthesis refers to the exhibit
number in such Registration Statement.
2 Exhibit previously filed as part of, and incorporated herein by
reference to, Amendment No. 1 to the Registrant's Registration Statement on Form
S-1 (Registration No. 333-3972). The exhibit number contained in parenthesis
refers to the exhibit number in such Amendment.
3 Exhibit previously filed as part of, and incorporated herein by
reference to, Amendment No. 2 to the Registrant's Registration Statement on Form
S-1 (Registration No. 333-3972). The exhibit number contained in parenthesis
refers to the exhibit number in such Amendment.
4 Exhibit previously filed as part of, and incorporated herein by
reference to, the Registrant's Report on Form 10-K for the fiscal year ended
December 31, 1998. The exhibit number contained in parenthesis refers to the
exhibit number in such Report.
34
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
GENESEE & WYOMING INC.
Date: November 15, 1999 By: /s/ Mortimer B. Fuller, III
---------------------------
Name: Mortimer B. Fuller, III
Title: Chairman of the Board and
CEO
Date: November 15, 1999 By: /s/ Alan R. Harris
---------------------------
Name: Alan R. Harris
Title: Senior Vice President and
Chief Accounting Officer
The remainder of this page is intentionally left blank.
35
<PAGE>
EXHIBIT 4.1
THIRD AMENDED AND RESTATED
--------------------------
REVOLVING CREDIT AND TERM LOAN AGREEMENT
----------------------------------------
Dated as of August 17, 1999
among
GENESEE & WYOMING INC.,
as US Borrower
AUSTRALIA SOUTHERN RAILROAD PTY. LIMITED, ACN 079 444 296,
as Australian Borrower,
QUEBEC GATINEAU RAILWAY INC.,
as Canadian Borrower
COMPANIA DE FERROCARRILES CHIAPAS - MAYAB, S.A. de C.V.,
as Mexican Borrower
THE GUARANTORS,
THE LENDING INSTITUTIONS LISTED
ON SCHEDULE II HERETO,
as Banks
BANKBOSTON, N.A.,
as Administrative Agent
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent and
Australian Agent
with
BANCBOSTON ROBERTSON STEPHENS INC.
as Arranger
<PAGE>
EXHIBITS AND SCHEDULES
----------------------
*Exhibit A-1 Form of US Revolving Credit Note
*Exhibit A-2 Form of Mexican Revolving Credit Note
*Exhibit B-1 Form of US Term Note
*Exhibit B-2 Form of Canadian Term Note
*Exhibit B-3 Form of Mexican Term Note
*Exhibit C-1 Form of US Revolving Credit Loan Request
*Exhibit C-2 Form of Australian Revolving Credit Loan Request
*Exhibit C-3 Form of Mexican Revolving Credit Loan Request
*Exhibit C-4 Form of Canadian Continuation Request
*Exhibit D Form of Compliance Certificate
*Exhibit E Form of Instrument of Adherence (Guaranty)
*Exhibit F Form of Assignment and Acceptance
*Schedule I Guarantors
*Schedule II Banks and Commitments
*Schedule III Existing Letters of Credit
*Schedule 8.3 Titles to Properties; Leases
*Schedule 8.7 Litigation
*Schedule 8.14 Certain Transactions
*Schedule 8.15 ERISA
*Schedule 8.17 Environmental Compliance
*Schedule 8.18 Subsidiaries; Joint Ventures
*Schedule 8.21 Operating Locations
*Schedule 9.7 Insurance
*Schedule 10.1 Existing Indebtedness
*Schedule 10.2 Existing Liens
*Schedule 10.3 Existing Investments
* OMITTED EXHIBITS AND SCHEDULES
UPON WRITTEN REQUEST, THE REGISTRANT WILL
PROVIDE COPIES OF ANY OF THE REFERENCED OMITTED EXHIBITS AND SCHEDULES.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DEFINITIONS AND RULES OF INTERPRETATION.................................................. 2
---------------------------------------
1.1. Definitions....................................................................... 2
-----------
1.2. Rules of Interpretation........................................................... 33
-----------------------
2. THE REVOLVING CREDIT FACILITIES.......................................................... 34
-------------------------------
2.1. Commitment to Lend................................................................ 34
------------------
2.1.1. US Revolving Credit Loans................................................. 34
-------------------------
2.1.2. Australian Revolving Credit Loans......................................... 35
---------------------------------
2.1.3. Mexican Revolving Credit Loans............................................ 35
------------------------------
2.2. Commitment Fee.................................................................... 36
--------------
2.3. Reduction of Commitments.......................................................... 37
------------------------
2.4. Reduction of Optional Currency Borrowings......................................... 38
-----------------------------------------
2.5. The US Revolving Credit Notes; Australian Revolving
---------------------------------------------------
Credit Loan Accounts; Mexican Revolving Credit Notes.............................. 38
----------------------------------------------------
2.6. Reliquification Bills............................................................. 39
---------------------
2.7. Interest on Revolving Credit Loans................................................ 40
----------------------------------
2.8. Requests for Revolver Loans....................................................... 41
---------------------------
2.9. US Borrower's Conversion Options; Continuation of Loans........................... 42
-------------------------------------------------------
2.9.1. Conversion to Different Type of US Revolving Credit Loan.................. 42
--------------------------------------------------------
2.9.2. Continuation of Type of US Revolving Credit Loan.......................... 43
------------------------------------------------
2.9.3. Eurocurrency Rate Loans................................................... 44
-----------------------
2.10. Mexican Borrower's Conversion Options; Continuation of Loans...................... 44
------------------------------------------------------------
2.10.1. Conversion to Different Type of Mexican Revolving Credit Loan............. 44
-------------------------------------------------------------
2.10.2. Continuation of Type of Mexican Revolving Credit Loan..................... 44
-----------------------------------------------------
2.10.3. Eurocurrency Rate Loans................................................... 45
-----------------------
2.11. Optional Currencies............................................................... 45
-------------------
2.12. Funds for US Revolving Credit Loans............................................... 46
-----------------------------------
2.12.1. Funding Procedures........................................................ 46
------------------
2.12.2. Advances by Administrative Agent.......................................... 47
--------------------------------
2.13. Funding Procedures for Australian Revolving Credit Loans.......................... 47
--------------------------------------------------------
2.13.1. Funding Procedures........................................................ 47
------------------
2.13.2. Advances by Australian Agent.............................................. 48
----------------------------
2.14. Funds for Mexican Revolving Credit Loans.......................................... 49
----------------------------------------
2.14.1. Funding Procedures........................................................ 49
------------------
2.14.2. Advances by Administrative Agent.......................................... 49
--------------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
3. THE TERM LOANS........................................................................... 50
--------------
3.1. Commitment to Lend............................................................... 50
------------------
3.2. The US Term Notes; Canadian Term Notes; Mexican Term Notes....................... 50
----------------------------------------------------------
3.3. Schedule of Installment Payments of Principal of Term Loans...................... 52
-----------------------------------------------------------
3.4. Interest on Term Loans........................................................... 54
----------------------
3.5. Notification by Borrowers........................................................ 54
-------------------------
3.6. Amounts, etc..................................................................... 55
------------
3.7. Interest Periods................................................................. 55
----------------
4. MANDATORY PREPAYMENT OF LOANS............................................................ 55
-----------------------------
4.1. Maturity of Loans................................................................ 55
-----------------
4.2. Mandatory Payments of Loans...................................................... 56
---------------------------
4.2.1. Mandatory Repayments of Loans............................................ 56
-----------------------------
4.2.2. Mandatory Prepayments from Asset Sales................................... 56
--------------------------------------
4.2.3. Mandatory Prepayments from Equity Sales.................................. 58
---------------------------------------
4.2.4. Mandatory Prepayments from Debt Offerings................................ 59
-----------------------------------------
4.2.5. Mandatory Repayment by Australian Borrower............................... 60
-----------------------------------------
4.2.6. Mandatory Prepayment From Excess Cash Flow............................... 61
------------------------------------------
4.2.7. Application of Repayments................................................ 61
-------------------------
4.2.8. Reduction of Commitments................................................. 63
------------------------
4.3. Optional Repayments of Loans..................................................... 63
----------------------------
5. LETTERS OF CREDIT........................................................................ 65
-----------------
5.1. Letter of Credit Commitments..................................................... 65
----------------------------
5.1.1. Commitment to Issue Letters of Credit.................................... 65
-------------------------------------
5.1.2. Letter of Credit Applications............................................ 65
-----------------------------
5.1.3. Terms of Letters of Credit............................................... 66
--------------------------
5.1.4. Reimbursement Obligations of US Revolving Credit Banks................... 66
------------------------------------------------------
5.1.5. Participations of US Revolving Credit Banks.............................. 66
-------------------------------------------
5.2. Reimbursement Obligation of the US Borrower...................................... 67
------------------------------------------
5.3. Letter of Credit Payments........................................................ 67
-------------------------
5.4. Obligations Absolute............................................................. 68
--------------------
5.5. Reliance by Issuer............................................................... 68
------------------
5.6. Letter of Credit Fee............................................................. 69
--------------------
6. CERTAIN GENERAL PROVISIONS............................................................... 69
--------------------------
6.1. Fees............................................................................. 69
----
6.2. Funds for Payments............................................................... 70
------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
6.2.1. Payments to Agents........................................................ 70
------------------
6.2.2. No Offset, Etc............................................................ 72
--------------
6.2.3. Currency Matters.......................................................... 73
----------------
6.3. Computations....................................................................... 76
------------
6.4. Inability to Determine Eurocurrency Rate or Canadian Eurodollar Rate............... 77
--------------------------------------------------------------------
6.5. Illegality......................................................................... 78
----------
6.6. Additional Costs, Etc.............................................................. 78
---------------------
6.7. Capital Adequacy................................................................... 80
----------------
6.8. Certificate........................................................................ 81
-----------
6.9. Indemnity.......................................................................... 82
---------
6.10. Interest After Default............................................................. 82
----------------------
6.10.1. Overdue Amounts........................................................... 82
---------------
6.10.2. Amounts Not Overdue....................................................... 83
-------------------
6.11. Replacement of Banks............................................................... 83
--------------------
6.12. Taxes.............................................................................. 84
-----
6.13. Interest Limitation................................................................ 84
-------------------
6.14. Concerning Joint and Several Liability of the Borrowers............................ 85
-------------------------------------------------------
7. GUARANTY AND COLLATERAL SECURITY.......................................................... 87
--------------------------------
7.1. Guaranty........................................................................... 87
--------
7.2. Guarantors Agreement to Pay Enforcement Costs, Etc................................. 88
--------------------------------------------------
7.3. Effectiveness; Enforcement......................................................... 89
--------------------------
7.4. Waivers............................................................................ 90
-------
7.5. Expenses........................................................................... 90
--------
7.6. Concerning Joint and Several Liability of the Guarantors........................... 90
--------------------------------------------------------
7.7. Subrogation; Subordination......................................................... 94
--------------------------
7.8. Currency of Payment................................................................ 95
-------------------
7.9. Indemnity.......................................................................... 95
---------
8. REPRESENTATIONS AND WARRANTIES............................................................ 96
------------------------------
8.1. Corporate Authority................................................................ 96
-------------------
8.1.1. Incorporation; Good Standing.............................................. 96
----------------------------
8.1.2. Authorization............................................................. 96
-------------
8.1.3. Enforceability............................................................ 96
--------------
8.2. Governmental Approvals............................................................. 97
----------------------
8.3. Title to Properties; Leases........................................................ 97
---------------------------
8.4. Financial Statements and Projections............................................... 97
------------------------------------
8.4.1. Financial Statements...................................................... 97
--------------------
8.4.2. Projections............................................................... 98
-----------
8.5. No Material Changes, Etc.; Solvency................................................ 98
-----------------------------------
8.5.1. Changes................................................................... 98
-------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
8.5.2. Solvency.................................................................. 98
--------
8.6. Franchises, Patents, Copyrights, Etc............................................... 98
------------------------------------
8.7. Litigation......................................................................... 99
----------
8.8. No Materially Adverse Contracts, Etc............................................... 99
------------------------------------
8.9. Compliance with Other Instruments, Laws, Etc....................................... 99
--------------------------------------------
8.10. Tax Status......................................................................... 99
----------
8.11. No Event of Default................................................................ 100
-------------------
8.12. Holding Company and Investment Company Acts........................................ 100
-------------------------------------------
8.13. Absence of Financing Statements, Etc............................................... 100
------------------------------------
8.14. Certain Transactions............................................................... 100
--------------------
8.15. Employee Benefit Plans............................................................. 100
----------------------
8.15.1. In General................................................................ 100
----------
8.15.2. Terminability of Welfare Plans............................................ 101
------------------------------
8.15.3. Guaranteed Pension Plans.................................................. 101
------------------------
8.15.4. Multiemployer Plans....................................................... 101
-------------------
8.15.5. Canadian Plans............................................................ 102
--------------
8.15.6. Mexican Plans............................................................. 102
-------------
8.16. Use of Proceeds; Regulations U and X............................................... 102
------------------------------------
8.17. Environmental Compliance........................................................... 102
------------------------
8.18. Subsidiaries, Etc.................................................................. 104
-----------------
8.19. Capitalization..................................................................... 105
--------------
8.20. Fiscal Year........................................................................ 106
-----------
8.21. Operation of Railroads............................................................. 106
----------------------
8.22. Disclosure......................................................................... 106
----------
8.23. No Withholding..................................................................... 106
--------------
8.24. Year 2000 Problem.................................................................. 106
-----------------
9. AFFIRMATIVE COVENANTS OF THE BORROWERS................................................... 107
--------------------------------------
9.1. Punctual Payment................................................................... 107
----------------
9.2. Maintenance of Office.............................................................. 107
---------------------
9.3. Records and Accounts............................................................... 108
--------------------
9.4. Financial Statements, Certificates and Information................................. 108
--------------------------------------------------
9.5. Notices............................................................................ 109
-------
9.5.1. Defaults.................................................................. 109
--------
9.5.2. Environmental Events...................................................... 110
--------------------
9.5.3. Notice of Litigation and Judgments........................................ 110
----------------------------------
9.5.4. Notification of Derailments............................................... 110
---------------------------
9.6. Corporate Existence; Maintenance of Properties..................................... 111
----------------------------------------------
9.7. Insurance.......................................................................... 111
---------
9.8. Taxes.............................................................................. 111
-----
9.9. Inspection of Properties and Books, Etc............................................ 112
---------------------------------------
9.9.1. General................................................................... 112
-------
9.9.2. Communications with Accountants........................................... 112
-------------------------------
9.10. Compliance with Laws, Contracts, Licenses, and Permits............................. 112
------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
9.11. Employee Benefit Plans........................................................... 113
----------------------
9.12. Use of Proceeds.................................................................. 113
---------------
9.13. Further Assurances............................................................... 113
------------------
9.14. Additional Subsidiaries.......................................................... 113
-----------------------
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS............................................... 114
-------------------------------------------
10.1. Restrictions on Indebtedness..................................................... 114
----------------------------
10.2. Restrictions on Liens............................................................ 116
---------------------
10.3. Restrictions on Investments...................................................... 118
---------------------------
10.4. Distributions and Restricted Payments............................................ 121
-------------------------------------
10.5. Merger, Acquisitions and Disposition of Assets................................... 122
----------------------------------------------
10.5.1. Mergers and Acquisitions................................................. 122
------------------------
10.5.2. Disposition of Assets.................................................... 122
---------------------
10.6. Sale and Leaseback. After the Closing Date,...................................... 122
-------------------------------------------
10.7. Compliance with Environmental Laws............................................... 123
----------------------------------
10.8. CSX Remaining Debt............................................................... 123
------------------
10.9. Employee Benefit Plans........................................................... 123
----------------------
10.10. Business Activities.............................................................. 124
-------------------
10.11. Capitalization................................................................... 124
--------------
10.12. Fiscal Year...................................................................... 125
-----------
10.13. Negative Pledges................................................................. 125
----------------
10.14. Transactions with Affiliates..................................................... 125
----------------------------
11. FINANCIAL COVENANTS OF THE BORROWERS...................................................... 125
------------------------------------
11.1. Funded Debt to EBITDAR Ratio..................................................... 125
----------------------------
11.2. Cash Flow Coverage............................................................... 126
------------------
11.3. Net Worth........................................................................ 126
---------
11.4. Minimum Quarterly EBITDA......................................................... 126
------------------------
11.5. Calculation of Financial Covenants............................................... 126
----------------------------------
12. CLOSING CONDITIONS........................................................................ 126
------------------
12.1. Loan Documents, etc.............................................................. 127
-------------------
12.2. Certified Copies of Charter Documents............................................ 127
-------------------------------------
12.3. Corporate or Other Action........................................................ 127
-------------------------
12.4. Incumbency Certificate........................................................... 127
----------------------
12.5. Validity of Liens................................................................ 127
-----------------
12.6. Perfection Certificates and Lien Search Results.................................. 128
-----------------------------------------------
12.7. Certificates of Insurance........................................................ 128
-------------------------
12.8. Opinion of Counsel............................................................... 128
------------------
12.9. Payment of Fees.................................................................. 128
---------------
12.10. Disbursement Instruction......................................................... 129
------------------------
12.11. Closing Certificate.............................................................. 129
-------------------
12.12. Closing Date Funded Debt to EBITDAR Ratio........................................ 129
-----------------------------------------
12.13. Completion of Mexican Acquisition................................................ 129
---------------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
13. CONDITIONS TO ALL BORROWINGS.............................................................. 129
----------------------------
13.1. Representations True; No Event of Default........................................ 129
-----------------------------------------
13.2. No Legal Impediment.............................................................. 130
-------------------
13.3. Governmental Regulation.......................................................... 130
-----------------------
13.4. Proceedings and Documents........................................................ 130
-------------------------
14. EVENTS OF DEFAULT; ACCELERATION; ETC...................................................... 130
------------------------------------
14.1. Events of Default and Acceleration............................................... 130
----------------------------------
14.2. Termination of Commitments....................................................... 134
--------------------------
14.3. Remedies......................................................................... 134
--------
15. SETOFF.................................................................................... 135
------
16. THE AGENTS................................................................................ 135
----------
16.1. Authorization.................................................................... 135
-------------
16.2. Employees and Agents............................................................. 136
--------------------
16.3. No Liability..................................................................... 136
------------
16.4. No Representations............................................................... 136
------------------
16.4.1. General................................................................. 136
-------
16.4.2. Closing Documentation, Etc.............................................. 137
--------------------------
16.5. Payments......................................................................... 137
--------
16.5.1. Payments to Agents...................................................... 137
------------------
16.5.2. Distribution by Agents.................................................. 137
----------------------
16.5.3. Delinquent Banks........................................................ 138
----------------
16.6. Holders of Notes................................................................. 138
----------------
16.7. Indemnity........................................................................ 139
---------
16.8. Agents as Banks.................................................................. 139
---------------
16.9. Resignation...................................................................... 139
-----------
16.10. Notification of Defaults and Events of Default................................... 139
----------------------------------------------
16.11. Duties of Documentation Agent.................................................... 140
-----------------------------
16.12. Quebec Security.................................................................. 140
---------------
17. EXPENSES.................................................................................. 140
--------
18. INDEMNIFICATION........................................................................... 141
---------------
19. SURVIVAL OF COVENANTS, ETC................................................................ 142
--------------------------
20. ASSIGNMENT AND PARTICIPATION.............................................................. 142
----------------------------
20.1. Conditions to Assignment by Bank................................................. 142
--------------------------------
20.2. Certain Representations and Warranties; Limitations; Covenants................... 143
--------------------------------------------------------------
20.3. Register......................................................................... 144
--------
20.4. New Notes........................................................................ 145
---------
20.5. Participations................................................................... 145
--------------
20.6. Disclosure....................................................................... 146
----------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
20.7. Assignee or Participant Affiliated with the Borrowers............................. 146
-----------------------------------------------------
20.8. Miscellaneous Assignment Provisions............................................... 146
-----------------------------------
20.9. Assignment by Borrower............................................................ 147
----------------------
21. NOTICES, ETC.............................................................................. 147
------------
22. GOVERNING LAW............................................................................. 148
-------------
23. HEADINGS.................................................................................. 148
--------
24. COUNTERPARTS.............................................................................. 148
------------
25. ENTIRE AGREEMENT, ETC..................................................................... 148
---------------------
26. WAIVER OF JURY TRIAL, ETC................................................................. 149
-------------------------
27. CONSENTS, AMENDMENTS, WAIVERS, ETC........................................................ 149
----------------------------------
28. SEVERABILITY.............................................................................. 150
------------
29. PARI PASSU TREATMENT...................................................................... 150
--------------------
30. TRANSITIONAL ARRANGEMENTS................................................................. 151
-------------------------
30.1. Prior Credit Agreement Superseded................................................. 151
---------------------------------
30.2. Return and Cancellation of Prior Notes............................................ 151
--------------------------------------
30.3. Interest and Fees under Superseded Agreement...................................... 151
--------------------------------------------
31. DISTRIBUTION OF COLLATERAL PROCEEDS....................................................... 152
-----------------------------------
</TABLE>
<PAGE>
THIRD AMENDED AND RESTATED
--------------------------
REVOLVING CREDIT AND TERM LOAN AGREEMENT
----------------------------------------
This THIRD AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
(this "Credit Agreement") is made as of August 17, 1999 by and among (a) GENESEE
----------------
& WYOMING INC., a Delaware corporation ("GWI" or the "US Borrower"), (b)
-----------
AUSTRALIA SOUTHERN RAILROAD PTY. LIMITED, ACN 079 444 296, an Australian
corporation ("ASR" or the "Australian Borrower"), (c) QUEBEC GATINEAU RAILWAY
--- -------------------
INC., a corporation constituted under the laws of Quebec, Canada ("Quebec" or
------
the "Canadian Borrower"), (d) COMPANIA DE FERROCARRILES CHIAPAS - MAYAB, S.A. de
-----------------
C.V., a corporation constituted under the laws of Mexico ("CFCM" or the "Mexican
---- -------
Borrower" and, collectively with the US Borrower, the Australian Borrower and
- --------
the Canadian Borrower, the "Borrowers"), (e) the Subsidiaries of the US Borrower
---------
listed on Schedule I hereto (the "US Guarantors"), (f) GENESEE & WYOMING
---------- -------------
AUSTRALIA PTY. LIMITED, ACN 080 579 308, an Australian corporation ("GWAI") and
----
the Subsidiaries of GWAI and ASR listed on Schedule I hereto (the "Australian
---------- ----------
Guarantors"), (g) GENESEE RAIL-ONE INC. ("GRO"), MIRABEL RAILWAY INC.
- ---------- ---
("Mirabel"), RAIL-ONE INC ("Rail-One"), and the Subsidiaries of GRO and the
Canadian Borrower listed on Schedule I hereto (the "Canadian Guarantors"), (h)
---------- -------------------
G.W. MEXICO, S.A. de C.V. ("G.W. Mexico") and the subsidiaries of CFCM and GW
---- ------
Mexico listed on Schedule I hereto (the "Mexican Guarantors"), (i) BANKBOSTON,
-------- - ------- ----------
N.A., a national banking association and the other lending institutions listed
on Schedule II hereto (collectively, the "Banks" and, each individually, a
-------- -- -----
"Bank"), (j) THE FIRST NATIONAL BANK OF CHICAGO, a national banking association,
----
as documentation agent (acting in such capacity, the "Documentation Agent") and
-------------------
Australian agent (acting in such capacity, the "Australian Agent"), (k)
----------------
BANKBOSTON, N.A., as administrative agent and syndication agent for itself and
the Banks (acting in such capacity, the "Administrative Agent" and collectively,
--------------------
with the Documentation Agent and the Australian Agent, the "Agents"), and (l)
------
BANCBOSTON ROBERTSON STEPHENS INC., as arranger for the Banks (the "Arranger").
--------
WHEREAS, pursuant to that certain Second Amended and Restated Revolving
Credit Agreement, dated as of October 31, 1997 (as heretofore amended, the
"Prior Credit Agreement"), certain Banks which are party to this Credit
----------------------
Agreement and certain other Banks have made loans to the US Borrower for the
purposes described therein; and
WHEREAS, GWI has requested that the Banks and the Agents amend and restate
the Prior Credit Agreement in its entirety to, among other things:
(a) increase the Total Commitment from $65,000,000 to $88,000,000;
(b) convert the loans and letters of credit under the Prior Credit
Agreement into Loans and Letters of Credit hereunder;
<PAGE>
-2-
(c) add ASR as Australian Borrower hereunder and GWAI, ASR and the
Restricted Subsidiaries of GWAI and ASR as Australian Guarantors hereunder;
(d) add Quebec as Canadian Borrower hereunder and the other Restricted
Subsidiaries of GRO, GRO, the Canadian Borrower, Mirabel and Rail-One as
Canadian Guarantors hereunder;
(e) add CFCM as Mexican Borrower hereunder and G.W. Mexico and the Mexican
Borrower and the Restricted Subsidiaries of the Mexican Borrower and G.W. Mexico
as Mexican Guarantors hereunder;
(f) add a Canadian Term Loan facility in the Canadian Dollar Equivalent of
$22,000,000; a U.S. Term Loan facility in the amount of $10,000,000 and a
Mexican Term Loan facility in the amount of $30,000,000; and
(g) make certain other changes to the terms and provisions of the Prior
Credit Agreement;
NOW THEREFORE, the Borrowers, the Guarantors, the Banks and the Agents
hereby agree that the Prior Credit Agreement (including all the schedules and
exhibits thereto) is hereby amended and restated in its entirety as set forth
herein.
1. DEFINITIONS AND RULES OF INTERPRETATION.
---------------------------------------
1.1 Definitions.
-----------
The following terms shall have the meanings set forth in this (S)1 or elsewhere
in the provisions of this Credit Agreement referred to below:
Adjustment Date. Each April 1, June 1, September 1 and December 1 of each
---------------
calendar year.
Administrative Agent. See preamble.
--------------------
Administrative Agent's Head Office. The Administrative Agent's head office
----------------------------------
located at 100 Federal Street, Boston, Massachusetts 02110, or at such other
location as the Administrative Agent may designate from time to time.
Administrative Agent's Mexican Lending Office. The Administrative Agent's
---------------------------------------------
Nassau Branch office located at c/o International Loan Services, 100 Rustcraft
Road, Mail Stop MA DED 74-02-02D, Dedham, Massachusetts 02026.
Administrative Agent's Special Counsel. Bingham Dana LLP or such other
--------------------------------------
counsel as may be approved by the Administrative Agent.
Affected Bank. See (S)6.11.
-------------
<PAGE>
-3-
Affiliate. Any Person that would be considered to be an affiliate of GWI
---------
under Rule 144(a) of the Rules and Regulations of the Securities and Exchange
Commission, as in effect on the date hereof, if GWI were issuing securities.
Agents. See preamble.
------
Agents' Fee Letters. Collectively, the Fee Letter dated on or about the
-------------------
Closing Date among the Administrative Agent, the Arranger and GWI (the
"Administrative Agent's Fee Letter") and the Fee Letter dated on or about the
---------------------------------
Closing Date among the Australian Agent and the Borrowers (the "Australian
----------
Agent's Fee Letter").
- ------------------
Agents' Fees. See (S)6.1(a).
------------
Applicable Margin. For each period commencing on an Adjustment Date
-----------------
through the date immediately preceding the next Adjustment Date (each a "Rate
----
Adjustment Period"), the Applicable Margin shall be the applicable margin set
- -----------------
forth below with respect to the Funded Debt to EBITDAR Ratio, as determined for
the fiscal period of the Borrowers and their Restricted Subsidiaries ending
immediately prior to the applicable Rate Adjustment Period (except for any Rate
Adjustment Period beginning on April 1 of any calendar year for which the
Applicable Margin will be determined by reference to the Funded Debt to EBITDAR
Ratio for the fiscal period ending on the immediately preceding December 31).
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
Base Rate BBSW Rate,
and Eurocurrency Rate, Letter of
Funded Debt to Australian Canadian Credit
EBITDAR Base Rate Eurodollar Rate or Applicable
Level Ratio Applicable CDOR Rate Margin
----- ----- Margin Applicable Margin ------
------ -----------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
I Greater than or equal 0.75% 2.50% 2.50%
to 3.00 to 1.00
- ----------------------------------------------------------------------------------------
II Greater than or equal 0.50% 2.25% 2.25%
to 2.50 to 1.00 but
less than 3.00 to 1.00
- ----------------------------------------------------------------------------------------
III Greater than or equal 0.25% 2.00% 2.00%
to 1.50 but less than
2.50 to 1.00
- ----------------------------------------------------------------------------------------
IV Less than 1.50 to 0.00% 1.75% 1.75%
1.00
- ----------------------------------------------------------------------------------------
</TABLE>
<PAGE>
-4-
Notwithstanding the foregoing, (a) during the period commencing on the Closing
Date through December 31, 1999, the Applicable Margin shall be the Applicable
Margin set forth as Level I above, (b) if the Borrowers fail to deliver any
Compliance Certificate pursuant to (S)9.4(c) hereof, then, for the period
commencing on the date such Compliance Certificate was due pursuant to (S)9.4(c)
through the date such Compliance Certificate is actually delivered to the Banks,
the Applicable Margin shall be the highest Applicable Margin set forth above.
Arranger. See preamble.
--------
Assignment and Acceptance. See (S)20.1.
-------------------------
ASR. Australia Southern Railroad Pty. Limited, ACN 079 444 296, an
---
Australian corporation.
Audited Companies. The U.S. Borrower, the Mexican Borrower, the Australian
-----------------
Borrower and GRO.
Australian Agent. See preamble.
----------------
Australian Agent's Office. The Australian Agent's office as designated by
-------------------------
the Australian Agent from time to time.
Australian Banks. The Banks listed on Schedule II, acting in their role as
---------------- -------- --
makers of Australian Revolving Credit Loans in accordance with (S)2.1.2 hereof.
Australian Base Rate. The annual rate of interest announced from time to
--------------------
time by the Australian Agent at its head office in Adelaide, South Australia as
its "overdraft rate".
Australian Base Rate Loan. Australian Revolving Credit Loans bearing
-------------------------
interest calculated by reference to the Australian Base Rate.
Australian Borrower. See preamble.
-------------------
Australian Business Day. Any day on which banking institutions in Sydney,
-----------------------
New South Wales and Adelaide, South Australia are open for the transaction of
banking business.
Australian Commitment. With respect to each Australian Bank, the amount to
---------------------
be set forth on Schedule II hereto as the amount of such Australian Bank's
-------- --
commitment to make Australian Revolving Credit Loans to the Australian Borrower,
as the same may be increased or reduced from time to time; or if such commitment
is terminated pursuant to the provisions hereof, zero.
Australian Commitment Fee. See (S)2.2(b).
-------------------------
<PAGE>
-5-
Australian Commitment Percentage. With respect to each Australian Bank,
--------------------------------
the percentage set forth next to such Australian Bank's name on Schedule II
-------- --
hereto, as the same may be adjusted in accordance with (S)20.
Australian Counsel. Piper Alderman, 167 Flinders Street, Adelaide, South
------------------
Australia or such other counsel as may be approved by the Agents.
Australian Dollars or Aus. $. Dollars in lawful currency of Australia.
------------------ ------
Australian Dollar Equivalent. On any date of determination, with respect
----------------------------
to an amount denominated in Australian Dollars, such amount of Australian
Dollars, and with respect to an amount denominated in a currency other than
Australian Dollars, the amount of Australian Dollars (as conclusively
ascertained by the Administrative Agent absent manifest error) which could be
purchased by the Administrative Agent with that amount of such other currency at
the spot rate of exchange quoted by the Administrative Agent in the applicable
foreign exchange market on the date of determination for the purchase of
Australian Dollars with such currency.
Australian Eligible Assignee. Any of (i) a body corporate which is a
----------------------------
"Bank" within the meaning of the Banking Act 1959 (Commonwealth of Australia)
and having total assets in excess of Aus. $1,000,000,000; (ii) a commercial bank
organized under the laws of any country other than Australia which is a member
of the Organization for Economic Co-operation and Development (the "OECD"), or a
----
political sub-division of any such country and having total assets in excess of
$1,000,000,000 provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is also
a member of the OECD); (iii) the central bank of any country which is a member
of the OECD; and (iv) if, but only if, any Event of Default has occurred and is
continuing, any other bank, insurance company, commercial finance company or
other financing institution or other Person approved by the Administrative
Agent, such approval not to be unreasonably withheld.
Australian Guaranteed Obligations. See (S)7.1.
---------------------------------
Australian Guarantors. See Preamble.
---------------------
Australian Obligations. All obligations of the Australian Borrower to the
----------------------
Australian Banks and the Australian Agent (a) under or in respect of or in
connection with any of the Australian Revolving Credit Loans and including any
interest thereon, Australian Commitment Fees or other fees in respect thereof,
(b) under any Rate Hedging Agreement between the Australian Borrower and any
Bank or affiliate of a Bank, and (c) all other obligations under any other
instruments at any time evidencing any thereof.
Australian Revolving Credit Loan Accounts. See (S)2.5(b).
-----------------------------------------
Australian Revolving Credit Loan Request. See (S)2.8(b).
----------------------------------------
<PAGE>
-6-
Australian Revolving Credit Loans. The revolving credit loans to be made
---------------------------------
by the Australian Banks to the Australian Borrower pursuant to (S)2.1.2 hereof.
Australian Security Agreements. (a) Each of the Deeds of Charge, dated on
------------------------------
or prior to the Closing, delivered by each of the Australian Guarantors to the
Australian Agent, each in form and substance satisfactory to the Australian
Agent, granting the Australian Agent a first priority security interest in all
the property of each of the Australian Guarantors and a first priority security
interest in 100% of the equity interests in each of the Australian Guarantors
(other than GWAI) and (b) that certain Deed of Charge, dated November 7, 1997,
by and between the Australian Borrower and ABN Amro Australia Limited ("ABN
---
Amro"), and assigned by ABN Amro to the Australian Agent and amended as of the
- ----
date hereof, granting the Australian Agent a first priority security interest in
all the property of the Australian Borrower, each of the foregoing Deeds of
Charge delivered as Collateral for the Australian Obligations and, to the extent
set forth herein and therein, the Canadian Obligations and the Mexican
Obligations, as the same may be amended, supplemented, modified or restated and
in effect from time to time.
Australian Security Documents. Collectively, the Australian Security
-----------------------------
Agreements, the GWAI Stock Pledge Agreement and all other instruments and
documents, including, without limitation, Australian Securities and Investment
Commission statements, required to be executed or delivered pursuant to any
Australian Security Document.
Balance Sheet Date. December 31, 1998.
------------------
Banks. Collectively, the US Banks and the Australian Banks and any other
-----
Person who becomes an assignee of any rights and obligations of a Bank pursuant
to (S)20.
Base Rate. The higher of (i) the annual rate of interest announced from
---------
time to time by the Administrative Agent at its head office in Boston,
Massachusetts, as its "base rate" and (ii) one-half of one percent (1/2%) above
the Federal Funds Effective Rate.
Base Rate Loans. US Loans and Mexican Loans bearing interest calculated
---------------
by reference to the Base Rate.
BBSW Rate. For any Interest Period, the rate of interest per annum equal
---------
to the mean buying and selling rates for a Bill with a tenor equal to the
Interest Period, as specified in the Australian Revolving Credit Loan Request,
quoted on the page numbered "BBSW" of the Reuters Monitor System at or about
10:00 a.m. (Sydney time) on the first day of such Interest Period by at least
five (5) BBSW Reference Banks after eliminating the highest and the lowest mean
rates and taking the average of the remaining mean rates and then (if necessary)
rounding up to the nearest four (4) decimal places, provided that if in respect
--------
of any such day, the BBSW Rate cannot be determined because less than five BBSW
Reference Banks have quoted rates, the BBSW Rate shall
<PAGE>
-7-
be calculated as above by taking the rates otherwise quoted by five of the BBSW
Reference Banks at or about the above stated time, on application by the
Australian Agent for a Bill of the same tenor, provided that if in respect of
--------
any Interest Period, the BBSW Rate cannot be determined in accordance with the
foregoing procedures then the "BBSW Rate" for that Interest Period shall mean
such rate as is agreed between the Australian Agent and the Australian Borrower
having regard to comparable indices then available and in the absence of any
such agreement shall be the rate stipulated by the Australian Agent having
regard to such comparable indices.
BBSW Rate Loans. Australian Revolving Credit Loans bearing interest
---------------
calculated by reference to the BBSW Rate.
BBSW Reference Banks. National Australia Bank Limited, The Commonwealth
--------------------
Bank of Australia, Westpac Banking Corporation and Australia and New Zealand
Banking Group Limited.
Bill. A Bill of Exchange as defined in the Bills of Exchange Act 1999 of
----
the Commonwealth of Australia or a bill which may be treated by the holder as a
Bill of Exchange under Section 10 of such Act (but shall not include cheques).
BKB. BankBoston, N.A., a national banking association, acting in its
---
individual capacity.
Borrowers. Collectively, the US Borrower, the Canadian Borrower, the
---------
Australian Borrower and the Mexican Borrower, and the term Borrower shall apply
to any of them individually.
BPR. Buffalo & Pittsburgh Railroad, Inc., a Delaware corporation.
---
Calculation Date. See (S)6.2.3.2.
----------------
Canadian Borrower. See preamble.
-----------------
Canadian Business Day. Any day on which banking institutions in Montreal,
---------------------
Quebec and Boston, Massachusetts are open for the transaction of banking
business.
Canadian Counsel. Stikeman, Elliott or such other counsel as may be
----------------
approved by the Administrative Agent.
Canadian Dollar Equivalent. On any date of determination, with respect to
--------------------------
an amount denominated in Canadian Dollars, such amount of Canadian Dollars, and
with respect to an amount denominated in a currency other than Canadian Dollars,
the amount of Canadian Dollars (as conclusively ascertained by the
Administrative Agent absent manifest error) which could be purchased by the
Administrative Agent with that amount of such other currency at the spot rate of
exchange quoted by the Administrative Agent in the applicable foreign exchange
market on the date of determination for the purchase of Canadian Dollars with
such currency.
<PAGE>
-8-
Canadian Dollars or Cdn. $. Dollars in lawful currency of Canada.
---------------- ------
Canadian Eurodollar Rate. In respect of each Interest Period for a
------------------------
Canadian Eurodollar Loan, the rate for deposits in Canadian Dollars for a period
comparable to such Interest Period which appears on Telerate Page 3740 of the
Dow Jones Telerate Service (or such other page as may be designated as a
replacement page for such deposits) as of 11:00 a.m. (London time) two Canadian
Business Days before the first day of such Interest Period.
Canadian Eurodollar Rate Loans. The Canadian Term Loan denominated in
------------------------------
Canadian Dollars and bearing interest calculated by reference to the Canadian
Eurodollar Rate.
Canadian Guaranteed Obligations. See (S)7.1.
-------------------------------
Canadian Guarantors. See Preamble.
-------------------
Canadian Obligations. All obligations of the Canadian Borrower to the US
--------------------
Term Banks and the Administrative Agent (i) under or in respect of or in
connection with the Canadian Term Loan and including any interest thereon or
fees in respect thereof, (ii) under any Rate Hedging Agreement between the
Canadian Borrower and any Bank or affiliate of a Bank, and (iii) all other
obligations under any other instruments at any time evidencing any thereof.
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 Pledge Agreements. The Pledge Agreements and Securities Pledge
--------------------------
Agreement dated as of the Closing Date (i) between GRO and the Administrative
Agent, in form and substance satisfactory in all respects to the Administrative
Agent and granting a first ranking pledge and movable hypothec with delivery on
100% of GRO's equity interest in the Canadian Borrower and Huron respectively
and (ii) between Rail-One and the Administrative Agent, in form and substance
satisfactory in all respects to the Administrative Agent and granting a first
ranking pledge on 100% of Rail-One's equity interest in GRO.
Canadian Security Agreements. (i) The Deeds of Hypothec, (ii) that certain
----------------------------
Security Agreement, dated on or about the Closing Date entered into by GRO in
favor of the Administrative Agent, (iii) the Huron Security Agreement, (iv) the
Quebec Bond, and (v) the Quebec Bond Pledge Agreement, in each case in form and
substance satisfactory to the Administrative Agent.
<PAGE>
-9-
Canadian Security Documents. Collectively, the Canadian Security
---------------------------
Agreements, the Canadian Pledge Agreements, the GWIC Stock Pledge Agreement, and
all other instruments and documents required to be executed or delivered
pursuant to any Canadian Security Documents.
Canadian Term Loan. The term loan made by the US Term Banks in accordance
------------------
with their Canadian Term Loan Percentages to the Canadian Borrower on the
Closing Date pursuant to (S)3.1(b) in the Canadian Dollar Equivalent of the
aggregate principal amount of $22,000,000.
Canadian Term Loan Percentage. With respect to each US Term Bank, the
-----------------------------
percentage set forth on Schedule II (subject to adjustment in accordance with
(S)20 hereof) as such Bank's percentage of the Canadian Term Loan.
Canadian Term Notes. See (S)3.2(b).
-------------------
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 generally accepted
accounting principles.
Capital Expenditures. Amounts paid or indebtedness incurred 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 generally accepted accounting principles.
Capitalized Leases. Leases under which any of the Borrowers or any of
------------------
their Restricted Subsidiaries is the lessee or obligor, the discounted future
rental payment obligations under which are required to be capitalized on the
balance sheet of the lessee or obligor in accordance with generally accepted
accounting principles.
CDOR Rate. The annual rate of interest equal to the average 30 day rate
---------
applicable to Canadian bankers' acceptances appearing on the "Reuters Screen
CDOR Page" (as defined in the International Swap Dealer Association, Inc. (1991
ISDA) definitions, as modified and amended from time to time) as of 10:00 am.
(New York time) on such day, or if such day is not a Canadian and a US Business
Day, then on the immediately preceding Canadian and US Business Day; provided
--------
that if such rate does not appear on the Reuters' Screen CDOR Page as
contemplated, then the CDOR Rate on any day shall be calculated as the
arithmetic mean of the 30 day rates applicable to Canadian bankers' acceptances
quoted by the Banks which are listed in Schedule I to the Bank Act (Canada) as
of 10:00 a.m. (New York time) on such day, or if such day is not a Canadian and
a US Business Day, then on the immediately preceding Canadian and US Business
Day.
<PAGE>
-10-
CDOR Rate Loans. The Canadian Term Loan denominated in Canadian Dollars
---------------
and bearing interest calculated by reference to the CDOR Rate.
CERCLA. See (S)8.17.
------
CFCM. See preamble.
----
Closing Date. The first date on which the conditions set forth in (S)(S)12
------------
and 13 have been satisfied and any Loans are to be converted or made or any
Letters of Credit are to be converted or issued hereunder.
Code. The Internal Revenue Code of 1986, as amended, together with any
----
regulations issued thereunder.
Collateral. All of the Property, rights and interests of the Borrowers and
----------
their Restricted Subsidiaries that are or are intended to be subject to the
security interests created by the US Security Documents, the Australian Security
Documents, the Canadian Security Documents or the Mexican Security Documents.
Commitment. Collectively, the US Commitment, Australian Commitment and
----------
Mexican Commitment with respect to each Bank.
Commitment Fees. Collectively, the US Commitment Fee, the Australian
---------------
Commitment Fee and the Mexican Commitment Fee.
Commitment Fee Rate. (a) For each Rate Adjustment Period, the Commitment
-------------------
Fee Rate shall be the rate per annum set forth below corresponding to the Funded
Debt to EBITDAR Ratio calculated as at the Adjustment Date beginning such Rate
Adjustment Period:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------
Commitment
Level Funded Debt to EBITDAR Ratio Fee Rate
----- ---------------------------- --------
<S> <C> <C>
I Greater than or equal to 3.00 to 1.00 0.500%
-----------------------------------------------------------------------------
II Greater than or equal to 2.50 to 1.00 but less 0.500%
than 3.00 to 1.00
-----------------------------------------------------------------------------
III Greater than or equal to 1.50 to 1.00 but less 0.375%
than 2.50 to 1.00
-----------------------------------------------------------------------------
IV Less than 1.50 to 1.00 0.375%
-----------------------------------------------------------------------------
</TABLE>
(b) Notwithstanding the foregoing, for the period commencing on the Closing
Date through December 31, 1999, the Commitment Fee Rate shall be that rate set
forth as Level I in the table above.
<PAGE>
-11-
(c) If the Borrowers shall fail to deliver any Compliance Certificate
pursuant to (S)9.4(c) hereof, then, for the period commencing on the date such
Compliance Certificate was due pursuant to (S)9.4(c) through the date
immediately preceding the Adjustment Date immediately following the date on
which such Compliance Certificate is delivered, the Commitment Fee Rate shall be
the highest Commitment Fee set forth above.
Compliance Certificate. See (S)9.4(c).
----------------------
Concession. See definition of Mexican Acquisition Documents.
----------
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 generally accepted
accounting principles.
Consolidated EBITDA. For any fiscal period of the Borrowers and their
-------------------
Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated Net
Income for such fiscal period, plus in each case, to the extent deducted in
----
computing Consolidated Net Income and without duplication, (b) Consolidated
Total Interest Expense for such fiscal period, (c) income tax expense for such
fiscal period, and (d) the aggregate amount of depreciation and amortization for
such fiscal period minus (e) to the extent included in computing Consolidated
-----
Net Income, all gains from the sale of assets of the Borrowers and their
Restricted Subsidiaries and all extraordinary gains for such fiscal period plus
----
(f) all extraordinary losses for such fiscal period. For purposes of this
Credit Agreement, Consolidated EBITDA of the Mexican Borrower for the period of
four fiscal quarters (i) ended September 30, 1999 shall be deemed to be
$9,200,000, (ii) ending December 31, 1999 shall be deemed to be the sum of
$6,900,000 plus Consolidated EBITDA of the Mexican Borrower for the fiscal
----
quarter ending December 31, 1999, (iii) ending March 31, 2000 shall be deemed to
be the sum of $4,600,000 plus Consolidated EBITDA of the Mexican Borrower for
----
the period of two fiscal quarters ending March 31, 2000, and (iv) ending June
30, 2000 shall be deemed to be the sum of $2,300,000 plus Consolidated EBITDA of
----
the Mexican Borrower for the period of three fiscal quarters ending June 30,
2000.
Consolidated EBITDAR. For any fiscal period of the Borrowers and their
--------------------
Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated EBITDA
for such fiscal period, plus (b) to the extent deducted in computing
----
Consolidated Net Income, all payments and rental charges made by any of the
Borrowers or any of their Restricted Subsidiaries during such fiscal period in
respect to operating leases.
Consolidated Excess Cash Flow. With respect to any fiscal year of the
-----------------------------
Borrowers and their Restricted Subsidiaries, and determined on consolidated
basis, an amount equal to Consolidated EBITDA for such period, less the sum
----
(without duplication) of (a) the amount of Capital Expenditures made by the
Borrowers and their Restricted Subsidiaries during such period, (b) cash tax
<PAGE>
-12-
payments made by the Borrowers and their Restricted Subsidiaries during such
period, (c) Consolidated Total Interest Expense for such period and (d) all
regularly scheduled payments required to be made during such period in respect
of principal on long-term Consolidated Funded Debt (other than principal
payments on the CSX Remaining Debt made with the proceeds of a refinancing of
the CSX Remaining Debt on terms satisfactory to the Administrative Agent and the
Majority Banks).
Consolidated Funded Debt. As at any date of determination, an amount equal
------------------------
to the aggregate amount of Indebtedness of the Borrowers and their Restricted
Subsidiaries, determined on a consolidated basis, related to the borrowing of
money or the obtaining of credit (which the parties hereto agree for the
purposes of this definition does not include Indebtedness permitted under
(S)(S)10.1(b), (c), (d), (e), (g), (j) and (l) hereof) whether absolute or
contingent, including, to the extent not included in such Indebtedness, all
Capitalized Leases, the net present value (using a discount rate of 8% per
annum) of all operating leases with a non-cancellable term of longer than one
year and all Indebtedness guaranteed by any of the Borrowers or any of their
Restricted Subsidiaries.
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 generally accepted accounting
principles, after eliminating therefrom all extraordinary nonrecurring items of
income.
Consolidated Net Worth. The excess of Consolidated Total Assets over
----------------------
Consolidated Total Liabilities.
Consolidated Total Assets. All assets ("consolidated balance sheet assets")
------------------------- ---------------------------------
of the Borrowers and their Restricted Subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting principles.
Consolidated Total Liabilities. All liabilities of the Borrowers and their
------------------------------
Restricted Subsidiaries determined on a consolidated basis in accordance with
generally accepted accounting principles and classified as such on the
consolidated balance sheet of the Borrowers and their Restricted Subsidiaries
and all other Indebtedness of the Borrowers and their Restricted Subsidiaries,
whether or not so classified.
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, whether such interest
was or is required to be reflected as an item of expense or capitalized,
including payments consisting of interest in respect of Capitalized Leases and
including commitment fees, agency fees, facility fees, balance deficiency fees
and similar fees or expenses in connection with the borrowing of
<PAGE>
-13-
money (other than non-cash interest or fees) solely to the extent that such fees
are properly included as interest expense in accordance with generally accepted
accounting principles.
Continuation Request. A notice given by the Canadian Borrower to the
--------------------
Administrative Agent of the Canadian Borrower's election to continue a Canadian
Eurodollar Rate Loan in accordance with (S)3.5.
Conversion Request. A notice given by the US Borrower or the Mexican
------------------
Borrower to the Administrative Agent of the US Borrower's or the Mexican
Borrower's (as the case may be) election to convert or continue a Loan in
accordance with (S)(S)2.9, 2.10 and 3.5.
Corpus Christi Lease. The Lease Agreement dated as of July 25, 1997
--------------------
between Port of Corpus Christi Authority of Nueces County, Texas, as Lessor and
Corpus Christi Terminal Railroad, Inc. as Lessee, with respect to certain
railroad property and facilities, in substantially the form delivered to the
Administrative Agent on or prior to the date hereof.
Credit Agreement. This Third Amended and Restated Revolving Credit and
----------------
Term Loan Agreement, as amended, modified or supplemented and in effect from
time to time, including the Schedules and Exhibits hereto.
Creditors. See (S)7.9.
---------
CSX. CSX Transportation, Inc., a Virginia corporation.
---
CSX Mortgages. Collectively, the Mortgage and Assignment of Leases, Rents,
-------------
Issues and Profits (New York), dated as of October 7, 1991, from BPR to CSX with
respect to BPR right of way and associated property from BPR's milepost 2.0 near
Buffalo, New York and south to the New York/Pennsylvania state line and the
Mortgage and Assignment of Leases, Rents, Issues and Profits (Pennsylvania),
dated as of October 7, 1991, from BPR to CSX with respect to BPR right of way
and associated property from the New York/Pennsylvania state line south to BPR's
mile post 221.0 near Punxsutawney, Pennsylvania and securing the CSX Remaining
Debt.
CSX Security Agreements. Collectively, the Security Agreement
-----------------------
(Pennsylvania) dated as of October 7, 1991 between BPR and CSX and the Security
Agreement (New York) dated as of October 7, 1991 between BPR and CSX.
CSX Remaining Debt. Indebtedness of BPR to CSX under the Promissory Note
------------------
dated as of October 7, 1991, executed by BPR in favor of CSX in the form
delivered to the Administrative Agent prior to the Closing Date, in an aggregate
outstanding principal amount not to exceed $8,922,105, or any refinancing or
replacement thereof on terms satisfactory to the Majority Banks.
Currency Restriction. As it pertains to any foreign jurisdiction,
--------------------
including, without limitation, Mexico, (i) any foreign exchange restriction or
<PAGE>
-14-
prohibition; (ii) any moratorium or other order to cease payment of obligations
in Dollars or to restrict or prohibit the payment of Dollars outside such
foreign jurisdiction; (iii) any governmental or other declaration that any
obligations payable in Dollars have been or are to be converted to another
currency or to another form of, or assurance, of, payment of obligations; (iv)
any restriction (whether permanent or temporary) on the removal of Dollars from
any foreign jurisdiction; (v) any assumption by a foreign governmental authority
or other agency or entity of any obligations for the payment of money in
Dollars; and (vi) any other restriction, limitation, prohibition, action or
event, whether or not having the force of law and whether or not instituted by a
governmental authority or agency, the effect of which is to prevent or impair
the ability of any of the Borrowers to make payments of the Obligations in
Dollars.
Dansville. The Dansville and Mount Morris Railroad Company, a New York
---------
corporation.
Dayton. GWI Dayton, Inc., a Delaware corporation.
------
Default. See (S)14.1.
-------
Deeds of Hypothec. Those certain Deeds of Hypothec (i) entered into by the
-----------------
Canadian Borrower, GRO and Mirabel in favor of the Administrative Agent, each
dated as of August 11, 1999 and (ii) entered into by Rail-One in favor of the
Administrative Agent dated as of the Closing Date.
Defaulting Bank. See (S)6.11.
---------------
Delinquent Bank. See (S)16.5.3.
---------------
Distribution. The declaration or payment of any dividend on or in respect
------------
of any shares of any class of capital stock or other equity interests 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 or other equity
interests 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 or other equity interests of any Person.
Documentation Agent. See preamble.
-------------------
Dollar Equivalent. On any date of determination, with respect to an amount
-----------------
denominated in Dollars, such amount of Dollars, and with respect to an amount
denominated in a currency other than Dollars, the amount of Dollars (as
conclusively ascertained by the Administrative Agent absent manifest error)
which could be purchased by the Administrative Agent with that amount of such
other currency at the spot rate of exchange quoted by the
<PAGE>
-15-
Administrative Agent in the applicable foreign exchange market on the date of
determination for the purchase of Dollars with such currency.
Dollars or $. Dollars in lawful currency of the United States of America.
------- -
Domestic Lending Office. Initially, the office of each US Bank designated
-----------------------
as such in Schedule II hereto; thereafter, such other office of such US Bank, if
-----------
any, located within the United States that will be making or maintaining Base
Rate Loans.
Drawdown Date. The date on which any Loan is made or is to be made, and
-------------
the date on which any Loan is converted or continued in accordance with
(S)(S)2.9, 2.10 or 3.5.
Emerging Market. Any market outside the United States, Western Europe,
---------------
Australia, Canada or Japan.
Employee Benefit Plan. Any employee benefit plan within the meaning of
---------------------
(S)3(3) of ERISA maintained or contributed to by the US Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. See (S)8.17(a).
------------------
EPA. See (S)8.17(b).
---
ERISA. The Employee Retirement Income Security Act of 1974, as amended.
-----
ERISA Affiliate. Any Person which is treated as a single employer with the
---------------
US Borrower under (S)414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
----------------------
Pension Plan within the meaning of (S)4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
"Euro" or "Euro" Currency. The use of the term "Euro" in this Credit
---- ---- ---- ---------
Agreement relates to the establishment of the "Euro" as a single currency
pursuant to the Treaty Establishing the European Economic Community, as amended
by the Treaty on the European Union (the Maastrict Treaty), and the conversion
(pursuant to the requirements of such Treaty) of any Obligations under the Loan
Documents from an Optional Currency of a country that is a member of the
European Union into Euro. As of the date that any such Optional Currency is no
longer the lawful currency of its respective country, all payment Obligations
under the Loan Documents that would otherwise be in such Optional Currency shall
thereafter be satisfied in the "Euro" Currency. For the avoidance of doubt, the
parties hereto affirm and agree that neither the fixing of a conversion rate of
any such Optional Currency against the Euro, nor the mandatory conversion of
such Obligations into Euro, in each case pursuant to such Treaty, shall require
the early termination of this Credit Agreement or
<PAGE>
-16-
the prepayment of any amount due under the Loan Documents or create any
liability of one party to another party for any direct or consequential loss
otherwise arising from any of such events to the extent required by such Treaty.
Eurocurrency Business Day. Any day on which commercial banks are open for
-------------------------
international business (including dealings in Dollar deposits) in London or such
other Eurocurrency interbank market as may be selected by the Administrative
Agent in its sole discretion acting in good faith.
Eurocurrency Interbank Market. Any lawful recognized market in which
-----------------------------
deposits of Dollars and the relevant Optional Currencies are offered by
international banking units of United States banking institutions and by foreign
banking institutions to each other and in which foreign currency and exchange
operations or eurocurrency funding operations are customarily conducted.
Eurocurrency Lending Office. Initially, the office of each Bank designated
---------------------------
as such in Schedule II hereto; thereafter, such other office of such Bank, if
-----------
any, that shall be making or maintaining Eurocurrency Rate Loans.
Eurocurrency Offered Rate. With respect to the Interest Period for any
-------------------------
Eurocurrency Rate Loan denominated in an Optional Currency, the rate per annum
(rounded upwards to the nearest 1/16 of one percent) equal to the rate at which
the Administrative Agent is offered deposits in Dollars or the relevant Optional
Currency, as the case may be, two (2) US Business Days prior to the beginning of
such Interest Period in the Eurocurrency Interbank Market where the foreign
currency and exchange operations or eurocurrency funding operations of the
Administrative Agent are customarily conducted at or about 10:00 a.m. (London
time) for delivery on the first day of such Interest Period and for the number
of days comprised therein and in an amount equal (as nearly as may be)
Eurocurrency Rate Loan to which such Interest Period applies.
Eurocurrency Rate. With respect to amounts denominated in Dollars, the
-----------------
Eurodollar Rate, and with respect to amounts denominated in any Optional
Currency, the International Eurocurrency Rate.
Eurocurrency Rate Loans. US Loans denominated in Dollars or an Optional
-----------------------
Currency and bearing interest calculated by reference to the Eurocurrency Rate.
Eurocurrency Reserve Rate. For any day with respect to a Eurocurrency Rate
-------------------------
Loan, the maximum rate (expressed as a decimal) at which any Bank subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
<PAGE>
-17-
Eurodollar Rate. For any Interest Period with respect to a Eurocurrency
---------------
Rate Loan denominated in Dollars, the rate of interest equal to (a) the rate per
annum (rounded upwards to the nearest 1/16 of one percent) at which the
Administrative Agent's Eurocurrency Lending Office is offered Dollar deposits
two (2) US Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency and
exchange operations of such Eurocurrency Lending Office are customarily
conducted, for delivery on the first day of such Interest Period for the number
of days comprised therein and in an amount comparable to the amount of the
Eurocurrency Rate Loan denominated in Dollars to which such Interest Period
applies, divided by (b) a number equal to 1.00 minus the Eurocurrency Reserve
Rate, if applicable.
Event of Default. See (S)14.1.
----------------
Existing Letters of Credit. Those letters of credit issued by BKB for the
--------------------------
account of the US Borrower or any of its Restricted Subsidiaries prior to the
Closing Date and listed on Schedule III hereto.
------------
Federal Funds Effective Rate. For any day, the rate per annum equal to the
----------------------------
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a US Business Day, for the next
preceding US Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a US Business Day, the average of
the quotations for such day on such transactions received by the Administrative
Agent from three funds brokers of recognized standing selected by the
Administrative Agent.
FRA. The United States of America, represented by the Secretary of
---
Transportation acting through the Administrator of Federal Railroad
Administration or the Federal Railroad Administrator's designee.
Fuller Immediate Family. Mortimer B. Fuller, III, his interest in his
-----------------------
father's estate and any of his children or grandchildren and any trust or other
Person controlled by, and a majority of the beneficial ownership interest of
which is owned by, any of such individuals, singly or jointly.
Funded Debt to EBITDAR Ratio. At any date as of which such ratio shall be
----------------------------
determined, the ratio of (a) the aggregate outstanding amount of Consolidated
Funded Debt on such date to (b) Consolidated EBITDAR for the period of four
consecutive fiscal quarters most recently ended.
generally accepted accounting principles. (i) When used in (S)11, whether
----------------------------------------
directly or indirectly through reference to a capitalized term used therein,
means (A) principles that are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, in
effect for the fiscal year ended on the Balance Sheet Date, and (B) to the
extent consistent with such principles, the accounting practice of the Borrowers
<PAGE>
-18-
reflected in its financial statements for the year ended on the Balance Sheet
Date, and (ii) when used in general, other than as provided above, means
principles that are (A) consistent with the principles promulgated or adopted by
the Financial Accounting Standards Board and its predecessors, as in effect from
time to time, and (B) consistently applied with past financial statements of the
Borrowers adopting the same principles, provided that in each case referred to
in this definition of "generally accepted accounting principles" a certified
public accountant would, insofar as the use of such accounting principles is
pertinent, be in a position to deliver an unqualified opinion (other than a
qualification regarding changes in generally accepted accounting principles) as
to financial statements in which such principles have been properly applied.
GRO. See preamble.
---
GRO Guaranteed Obligations. See (S)7.1.
--------------------------
GRO Obligations. All obligations of GRO to the Banks and the Agents (i)
---------------
under or in respect of or in connection with GRO's guaranty of the Australian
Guaranteed Obligations, the Canadian Guaranteed Obligations and the Mexican
Guaranteed Obligations and including any interest thereon or fees in respect
thereof and (ii) all other obligations under any other instruments at any time
evidencing any thereof.
GRO Notes. Collectively, the notes issued by GRO to Rail-One and GWIC,
---------
respectively, evidencing Indebtedness of GRO to Rail-One and GWIC in the
aggregate principal amount of not more than Cdn. $13,000,000.
Guaranteed Obligations. Collectively, the US Guaranteed Obligations, the
----------------------
Australian Guaranteed Obligations, the Canadian Guaranteed Obligations, the
Mexican Guaranteed Obligations and the GRO Guaranteed Obligations.
Guaranteed Pension Plan. Any employee pension benefit plan within the
-----------------------
meaning of (S)3(2) of ERISA maintained or contributed to by the US Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guarantors. Collectively, GWI, ASR, Quebec, CFCM, the Australian
----------
Guarantors, the Canadian Guarantors, the Mexican Guarantors and the US
Guarantors, each of which shall guaranty certain Obligations pursuant to (S)7
hereof.
Guaranty. See (S)7.
--------
GWAI. See preamble.
----
GWAI Stock Pledge Agreement. The Stock Pledge Agreement dated as of the
---------------------------
Closing Date between GWI and the Administrative Agent, in form and substance
satisfactory to the Banks and the Agents, pledging (a) a first priority security
interest in and first priority pledge of 66% of the equity interest in
<PAGE>
-19-
GWAI to the Administrative Agent, as security for the US Obligations, and (b) a
first priority security interest in 34% of GWI's equity interest in GWAI and a
second priority security interest in 66% of GWI's equity interest in GWAI to the
Administrative Agent, as security for the Australian Obligations, the Canadian
Obligations and the Mexican Obligations, as the same may be amended,
supplemented, modified or restated and in effect from time to time.
G.W. Mexico. See preamble.
-----------
GWI. See preamble.
---
GWIC. GWI Canada, Inc., a Delaware corporation and a Restricted Subsidiary
----
of GWI.
GWIC Stock Pledge Agreement. The Stock Pledge Agreement dated as of the
---------------------------
Closing Date between GWIC and the Administrative Agent, in form and substance
satisfactory to the Banks and the Agents, pledging (a) a first priority security
interest in and pledge of 66% of GWIC's equity interest in GRO, Rail-One and
Mirabel to the Administrative Agent, as security for US Obligations, and (b) a
first priority security interest in 34% of GWIC's equity interest in GRO, Rail-
One and Mirabel and a second priority interest in 66% of GWIC's equity interest
in such Persons to the Administrative Agent, as security for the Australian
Obligations, the Canadian Obligations and the Mexican Obligations, as the same
may be amended, supplemented, modified or restated in effect from time to time.
Hazardous Substances. See (S)8.17(b).
--------------------
Huron. Huron Central Railway Inc., a corporation constituted under the
-----
laws of Ontario, Canada.
Huron Security Agreement. The General Security Agreement, dated on or
------------------------
about the Closing Date, between Huron and the Administrative Agent, in form and
substance satisfactory to the Administrative Agent.
IMR. Illinois & Midland Railroad, Inc., a Delaware corporation.
---
Indebtedness. All obligations, contingent and otherwise, that in
------------
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, including in any event and whether or not so
classified: (i) all debt and similar monetary obligations, whether direct or
indirect; (ii) all liabilities secured by any mortgage, pledge, security
interest, lien, charge or other encumbrance existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; and (iii) all guarantees, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness of others,
including any obligation to supply funds to or in any manner to invest in,
directly or indirectly, the debtor, to purchase indebtedness, or to assure the
<PAGE>
-20-
owner of indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make payment of
the indebtedness held by such owner or otherwise, and the obligations to
reimburse the issuer in respect of any letters of credit.
Instrument of Adherence (Guaranty). See (S)9.14.
----------------------------------
Interest Payment Date. (i) As to any Base Rate Loan, Australian Base Rate
---------------------
Loan or CDOR Rate Loan the last day of the calendar quarter; (ii) as to any
Eurocurrency Rate Loan or Canadian Eurodollar Rate Loan in respect of which the
Interest Period is (A) 3 months or less, the last day of such Interest Period
and (B) more than 3 months (in the case of Eurocurrency Rate Loans only), the
date that is 3 months from the first day of such Interest Period; and (iii) as
to any BBSW Rate Loan, the last Australian Business Day of the month.
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 (S)(S)2.9, 2.10 or 3.5 (i) for any Base Rate
Loan, Australian Base Rate Loan or CDOR Rate Loan, the last day of the calendar
quarter; (ii) for any Eurocurrency Rate Loan, 1, 2, 3 or 6 months; (iii) for any
BBSW Rate Loan, 30, 60, 90, 120, 150 or 180 days; and (iv) for any Canadian
Eurodollar Rate Loan, 30, 60 or 90 days; 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 all of the foregoing
--------
provisions relating to Interest Periods are subject to the following:
(a) if any Interest Period with respect to a BBSW Rate Loan would
otherwise end on a day that is not an Australian Business Day, that
Interest Period shall be extended to the next succeeding Australian
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 Australian Business Day;
(b) if any Interest Period with respect to an Eurocurrency Rate Loan
would otherwise end on a day that is not a Eurocurrency Business Day, that
Interest Period shall be extended to the next succeeding Eurocurrency
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 Eurocurrency Business Day;
(c) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a US Business Day, that Interest Period shall end on
the next succeeding US Business Day;
<PAGE>
-21-
(d) if any Interest Period with respect to an Australian Base
Rate Loan would end on a day that is not an Australian Business Day,
that Interest Period shall end on the next succeeding Australian
Business Day;
(e) if any Interest Period with respect to a CDOR Rate Loan or
Canadian Eurodollar Loan would end on a day that is not a Canadian
Business Day or Eurocurrency Business Day (in the case of Canadian
Eurodollar Loans), that Interest Period shall end on the next
succeeding Canadian Business Day or Eurocurrency Business Day (as the
case may be) unless the result of such extension would be to cause such
Interest Period to be carried into its ninety-first (91/st/) day, in
which event such Interest Period shall end on the immediately preceding
Canadian Business Day or Eurocurrency Business Day (as the case may
be);
(f) if the US Borrower or Mexican Borrower shall fail to give
notice as provided in (S)2.9 or (S)2.10, as the case may be, the US
Borrower or the Mexican Borrower, as the case may be, shall be deemed
to have requested a conversion of the affected Eurocurrency Rate Loan
to a Base Rate Loan and the continuance of all Base Rate Loans as Base
Rate Loans on the last day of the then current Interest Period with
respect thereto;
(g) any Interest Period relating to any Eurocurrency Rate Loan
that begins on the last Eurocurrency 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 Eurocurrency Business Day of a calendar month;
(h) any Interest Period relating to any BBSW Rate Loan or
Eurocurrency Rate Loan that would otherwise extend beyond the Maturity
Date shall end on the Maturity Date;
(i) if the Australian Borrower fails to nominate an Interest
Period, the Interest Period shall be as determined by the Australian
Agent or in the absence of such a determination by the Australian
Agent, the Interest Period shall be 3 months; and
(j) interest shall accrue for the first day of each Interest
Period and each day thereafter up to but (provided that interest is
timely paid) not including the last day of such Interest Period.
International Eurocurrency Rate. With respect to all Eurocurrency Rate
-------------------------------
Loans denominated in an Optional Currency for any Interest Period, the annual
rate of interest, rounded to the nearest 1/16th of one percent (1%), determined
by the Administrative Agent for such Interest Period in accordance with the
following formula:
<PAGE>
-22-
Eurocurrency Offered Rate
------------ ------- ----
International Eurocurrency Rate = 1 - Eurocurrency Reserve Rate
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 Administrative Agent 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, 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: (i) 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; (ii) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(iii) 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); (iv) 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 (v) there shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof.
Investors. Genesee & Wyoming Investors, Inc., a Delaware corporation.
---------
Issuing Bank. BKB, in its capacity as issuer of Letters of Credit pursuant
------------
to (S)5, or, in the event that BKB is unable to issue a Letter of Credit, any
other Bank selected by the Administrative Agent to issue such Letter of Credit
with the consent of the Borrowers and such Bank.
Kittanning. Kittanning Equipment Leasing Company, a Pennsylvania
----------
corporation and a wholly owned Subsidiary of PSR.
Leasing. GWI Leasing Corporation, a Delaware corporation.
-------
Letter of Credit. See (S)5.1.1.
----------------
Letter of Credit Application. See (S)5.1.1.
----------------------------
Letter of Credit Fee. See (S)5.6.
--------------------
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.
Letter of Credit Participation. See (S)5.1.4.
------------------------------
<PAGE>
-23-
Loan Documents. Collectively, this Credit Agreement, the Notes, the Letter
--------------
of Credit Applications, the Letters of Credit, the Security Documents, the Fee
Letters and any Instruments of Adherence executed in connection herewith.
Loan Requests. Collectively, any US Revolving Credit Loan Requests, any
-------------
Australian Revolving Credit Loan Requests and any Mexican Revolving Credit Loan
Requests.
Loans. Collectively, the US Loans, the Canadian Term Loan, Australian
-----
Revolving Credit Loans and the Mexican Loans made or to be made by the
applicable Banks to the applicable Borrower(s) pursuant to (S)(S)2 and 3.
Locomotive Sale. See (S)10.5.2.
---------------
Majority Banks. As of any date, Banks holding at least fifty-one percent
--------------
(51%) of the principal amount of the Loans on such date (including the unfunded
portion of the Commitments); and if no such principal is Outstanding, the Banks
whose aggregate Commitments constitute at least fifty-one percent (51%) of the
Total Commitment.
Majority US Term Banks. As of any date, US Term Banks holding at least
----------------------
fifty-one percent (51%) of the principal amount of the Term Loans on such date.
Management. GWI Rail Management Corporation, a Delaware corporation.
----------
Maturity Date. Five years from the Closing Date or such earlier date which
-------------
may result from a Default or an Event of Default hereunder.
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.
Mexican Acquisition. The acquisition by the Mexican Borrower made pursuant
-------------------
to the Mexican Acquisition Documents of a thirty-year concession to operate the
Chiapas - Mayab Railroad in Mexico and certain personal property, equipment and
other assets related thereto.
Mexican Acquisition Documents. Collectively, the Purchase and Sale
-----------------------------
Agreement for Personalty Under Title Qualifications and the Concession Agreement
(the "Concession"), each dated or to be dated August 17, 1999 by and between the
----------
Mexican Borrower and the government of Mexico and all other documents entered
into or delivered by the Borrowers or any of their Restricted Subsidiaries with
respect to the Mexican Acquisition.
Mexican Borrower. See preamble.
----------------
<PAGE>
-24-
Mexican Business Day. Any day on which banking institutions in Mexico City,
--------------------
Mexico and Boston, Massachusetts are open for the transaction of banking
business.
Mexican Commitment. With respect to each US Revolving Credit Bank, the
------------------
amount to be set forth on Schedule II hereto as the amount of such US Bank's
-------- --
commitment to make Mexican Revolving Credit Loans to the Mexican Borrower, as
the same may be increased or reduced from time to time; or if such commitment is
terminated pursuant to the provisions hereof, zero.
Mexican Commitment Fee. See (S)2.2(c).
----------------------
Mexican Commitment Percentage. With respect to each US Bank, the percentage
-----------------------------
set forth next to such US Bank's name on Schedule II hereto, as the same may be
-------- --
adjusted in accordance with (S)20.
Mexican Counsel. Ogarrio y Diaz, Abogados, Constituyentes No. 345-7 Piso,
---------------
Col. Daniel Garza, 11830 Mexico, D.F. or such other counsel as may be approved
by the Administrative Agent.
Mexican Guaranteed Obligations. See (S)7.1.
------------------------------
Mexican Guarantors. See preamble.
------------------
Mexican Loans. Collectively, the Mexican Revolving Credit Loans and the
-------------
Mexican Term Loan.
Mexican Obligations. All obligations of the Mexican Borrower to the US
-------------------
Banks and the Administrative Agent (a) under or in respect of or in connection
with any of the Mexican Revolving Credit Loans or Mexican Term Loan and
including any interest thereon, Mexican Commitment Fees or other fees in respect
thereof, (b) under any Rate Hedging Agreement between the Mexican Borrower and
any Bank or affiliate of a Bank, and (c) all other obligations under any other
instruments at any time evidencing any thereof.
Mexican Revolving Credit Notes. See (S)2.5(c).
------------------------------
Mexican Revolving Credit Loan Request. See (S)2.8(c).
-------------------------------------
Mexican Revolving Credit Loans. The revolving credit loans to be made by
------------------------------
the US Revolving Credit Banks to the Mexican Borrower pursuant to (S)2.1.3
hereof.
Mexican Security Agreements. Those certain Mercantile Pledge Agreements
---------------------------
between the Mexican Borrower and the Administrative Agent and between the
Mexican Guarantors and the Administrative Agent, in form and substance
satisfactory to the Agents, pledging and creating a first priority lien on and
security interest in certain equipment, machinery and other tangible and
intangible assets, as the same may be amended, supplemented, modified or
restated and in effect from time to time.
<PAGE>
-25-
Mexican Security Documents. Collectively, the Mexican Security Agreement,
--------------------------
the Mexican Stock Pledge Agreement and all other instruments and documents,
required to be executed or delivered pursuant to any Mexican Security Document.
Mexican Stock Pledge Agreement. The Stock Pledge Agreement dated as of the
------------------------------
Closing Date among GWI and the Administrative Agent, in form and substance
satisfactory to Agents, with respect to the equity interests of G.W. Mexico and
CFCM, as the same may be amended, supplemented, modified or restated and in
effect from time to time. The parties hereby agree that pursuant to such Stock
Pledge Agreement (i) 66% of GWI's equity interest in G.W. Mexico and CFCM shall
be pledged to the Administrative Agent on a first priority basis, as security
for the US Obligations, and (ii) 34% of GWI's equity interest in G.W. Mexico and
CFCM shall be pledged to the Administrative Agent on a first priority basis, and
66% of GWI's equity interest in G.W. Mexico and CFCM shall be pledged to the
Administrative Agent on a second priority basis, in each case as security for
the Australian Obligations, the Canadian Obligations and the Mexican
Obligations.
Mexican Term Loan. The term loan made by the US Term Banks to the Mexican
-----------------
Borrower on the Closing Date pursuant to (S)3.1(c) in the aggregate principal
amount of $30,000,000.
Mexican Term Loan Percentage. With respect to each US Term Bank, the
----------------------------
percentage set forth on Schedule II (subject to adjustment in accordance with
(S)20 hereof) as such Bank's percentage of the Mexican Term Loan.
Mexican Term Note. See (S)3.2(c).
-----------------
Mirabel. See preamble.
-------
Multiemployer Plan. Any multiemployer plan within the meaning of (S)3(37)
------------------
of ERISA maintained or contributed to by the US Borrower or any ERISA Affiliate.
Net Cash Proceeds. With respect to any sale of any assets of the Borrowers
-----------------
or any of their Restricted Subsidiaries, or the issuance and sale of equity
securities or debt of the Borrowers or any of their Restricted Subsidiaries, the
gross consideration received by the Borrowers or any of their Restricted
Subsidiaries, (in cash) from such sale of equity or debt issuance, net of
commissions, direct sales costs, normal closing adjustments, the amount used to
repay any Indebtedness permitted by (S)10.1 secured by such assets, income taxes
attributable to such sale and professional fees and expenses incurred directly
in connection therewith, to the extent the foregoing are actually paid in
connection with such sale or equity or debt issuance.
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 Bank
with respect to any Loan referred to in such Note.
<PAGE>
-26-
Notes. Collectively, the US Revolving Credit Notes, the US Term Notes, the
-----
Mexican Revolving Credit Notes, the Mexican Term Notes and the Canadian Term
Notes.
Note Pledge Agreement. The pledge of intercompany notes and the GRO Notes
---------------------
to the Administrative Agent as security for the US Obligations.
Obligations. Collectively, the US Obligations, the Canadian Obligations,
-----------
the Australian Obligations and the Mexican Obligations.
Optional Currency. Any currency other than Dollars which is freely
-----------------
convertible into Dollars and which is traded on any recognized Eurocurrency
Interbank Market which each of the US Revolving Credit Banks and the US Borrower
have agreed to be made available hereunder (including, without limitation,
Canadian Dollars); provided, however, that in the event the US Borrower requests
-------- -------
an Optional Currency for a Letter of Credit consisting of a currency other than
Australian Dollars or Canadian Dollars, the issuance of such Letter of Credit
shall be subject to the consent of the Administrative Agent.
Other Taxes. See (S)6.12(b).
-----------
Outstanding. With respect to the Loans, the aggregate unpaid principal
-----------
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by (S)4002 of ERISA
----
and any successor entity or entities having similar responsibilities.
Permitted Acquisition(s). See (S)10.3(i).
------------------------
Permitted Liens. Liens, security interests and other encumbrances permitted
---------------
by (S)10.2.
Person. Any individual, corporation, limited liability company,
------
partnership, trust, unincorporated association, business, or other legal entity,
and any government or any governmental agency or political subdivision thereof.
Prior Credit Agreement. See preamble.
----------------------
Pro Forma Basis. In connection with any proposed Permitted Acquisition
---------------
after the Closing Date, the calculation of compliance with the financial
covenants described in (S)10.3(i) hereof by the Borrowers and their Restricted
Subsidiaries (including the Person to be acquired) with reference to the audited
historical financial results of such Person and the Borrowers and their
Restricted Subsidiaries for the applicable Test Period after giving effect on a
pro forma basis to such Permitted Acquisition in the manner described in (i),
- --- -----
(ii) and (iii) below; and, following a Permitted Acquisition, the calculation of
compliance with the financial covenants set forth in (S)11 for the fiscal
quarter in which such Permitted Acquisition occurred and each of the three
fiscal quarters
<PAGE>
-27-
immediately following such Permitted Acquisition with reference to the audited
historical financial results of the Person so acquired and the Borrowers and
their Restricted Subsidiaries for the applicable Test Period after giving effect
on a pro forma basis to such Permitted Acquisition in the manner described in
--- -----
(i), (ii) and (iii) below, provided, however, that, in each case, in the event
-------- -------
that no historical financial results are available with respect to the Person or
assets to be acquired, such calculations shall be made with reference to
reasonable estimates of such past performance made by the Borrowers based on
existing data and other available information, such estimates to be agreed upon
by the Borrowers and the Administrative Agent and, with respect to Permitted
Acquisitions for which the total consideration therefor exceeds $10,000,000, the
Majority Banks:
(i) all Indebtedness (whether under this Credit Agreement or
otherwise) and any other balance sheet adjustments incurred or made in
connection with the Permitted Acquisition shall be deemed to have been
incurred or made on the first day of the Test Period, and all
Indebtedness of the Person acquired or to be acquired in such Permitted
Acquisition which was or will have been repaid in connection with the
consummation of the Permitted Acquisition shall be deemed to have been
repaid concurrently with the incurrence of the Indebtedness incurred in
connection with the Permitted Acquisition;
(ii) all Indebtedness assumed to have been incurred pursuant to
the preceding clause (i) shall be deemed to have borne interest at the
sum of (a) the arithmetic mean of (x) the Eurocurrency Rate for
Eurocurrency Rate Loans having an Interest Period of one month in
effect on the first day of the Test Period and (y) the Eurocurrency
Rate for Eurocurrency Rate Loans having an Interest Period of one month
in effect on the last day of the Test Period plus (b) the Applicable
----
Margin then in effect (after giving effect to the Permitted Acquisition
on a Pro Forma Basis); and
--- -----
(iii) other reasonable cost savings, expenses and other income
statement or operating statement adjustments which are attributable to
the change in ownership and/or management resulting from such Permitted
Acquisition as may be approved by the Administrative Agent in writing
(which approval shall not be unreasonably withheld) shall be deemed to
have been realized on the first day of the Test Period.
PSR. Pittsburg & Shawmut Railroad, Inc., a Delaware corporation.
---
Purchase Price. With respect to any Permitted Acquisition, all
--------------
consideration 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
<PAGE>
-28-
or similar payment and the amount of any Indebtedness assumed by any of the
Borrowers or any of their Restricted Subsidiaries.
Quebec. See Preamble.
------
Quebec Bond. The Bond dated August 17, 1999, in the amount of Cdn.
-----------
$130,000,000 issued by the Canadian Borrower in favor of the Administrative
Agent, in form and substance satisfactory to the Administrative Agent.
Quebec Bond Pledge Agreement. The Quebec Bond Pledge Agreement dated as of
----------------------------
August 17, 1999 between the Canadian Borrower and the Administrative Agent, in
form and substance satisfactory to the Administrative Agent.
Rail-One. See preamble.
--------
Rate Adjustment Period. See the definition of Applicable Margin.
----------------------
Rate Hedging Agreement. Any agreement, device or arrangement providing for
----------------------
payments which are related to fluctuations of interest rates, exchange rates or
forward rates, including, but not limited to, dollar-denominated or cross-
currency interest rate agreements, forward currency exchange agreements,
interest rate cap or collar protection agreements, forward rate currency or
interest rate options, puts and warrants.
Real Estate. All real property at any time owned or leased (as lessee or
-----------
sublessee) by any of the Borrowers or any of their Restricted Subsidiaries.
Register. See (S)20.3.
--------
Registered in Mexico. A bank or other financial institution that is duly
--------------------
registered in the Mexican Registry of Foreign Banks, Financial Entities,
Pension, Retirement and Investment Funds (Registro de Bancos, Entidades de
Financiamiento, Fondos de Pensiones y Jubilaciones y Fondos de Inversion de
Extranjero) held by the Mexican Secretary of Treasury and Public Credit.
Reimbursement Obligation. The US Borrower's obligation to reimburse the
------------------------
Issuing Bank and the US Revolving Credit Banks on account of any drawing under
any Letter of Credit as provided in (S)5.2.
Reliquification Bills. See (S)2.6.
---------------------
Replacement Bank. See (S)6.11.
----------------
Replacement Notice. See (S)6.11.
------------------
Reset Date. See (S)6.2.3.2.
----------
Restricted Payments. In relation to the Borrowers and their Restricted
-------------------
Subsidiaries, (a) any Distribution or (b) any payment or prepayment by any of
<PAGE>
-29-
the Borrowers or their Restricted Subsidiaries to any Affiliate of any of the
Borrowers or any of their Restricted Subsidiaries other than payments to
Affiliates for goods and services in the ordinary course of business on terms
equivalent to those obtainable in arms length transactions.
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 such Unrestricted
Subsidiary becomes a Guarantor hereunder and all tangible and intangible assets
of such Unrestricted Subsidiary (other than such Subsidiary's Real Estate) shall
be pledged by the applicable Borrowers to the applicable Agent as security for
such Subsidiary's guaranty pursuant to the applicable Security Documents.
Revolving Credit Loans. Collectively, US Revolving Credit Loans, Australian
----------------------
Revolving Credit Loans and Mexican Revolving Credit Loans.
RSI. Genesee & Wyoming Railroad Services, Inc. (f/k/a Railroad Services,
---
Inc.), a Delaware corporation.
SA Rail. SA Rail Pty. Limited, ACN 077 946 340, an Australian corporation.
-------
Security Agreements. Collectively, the US Security Agreement, the
-------------------
Australian Security Agreements, the Canadian Security Agreements and the Mexican
Security Agreements.
Security Documents. Collectively, the Security Agreements, US Stock Pledge
------------------
Agreement, GWAI Stock Pledge Agreement, Mexican Stock Pledge Agreement, the GWIC
Stock Pledge Agreement, the Canadian Pledge Agreements and the Note Pledge
Agreement, and all other instruments and documents required to be executed
and/or delivered pursuant to any of the Security Documents.
Solvent. See (S)8.5.2.
-------
STB. The Surface Transportation Board (the entity which succeeded to the
---
function and duties of the Interstate Commerce Commission) or any governmental
authority(ies) which succeeds to the function or duties of the Surface
Transportation Board or any portion thereof.
Stock Repurchase Agreement. The US Borrower's plan to repurchase up to two
--------------------------
hundred and fifty thousand shares of its Class A Common Stock in accordance with
the Exchange Act Rule 10b-18 to be held by the US Borrower as treasury stock
which stock may be used for customary corporate purposes.
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.
<PAGE>
-30-
Term Loans. Collectively, the US Term Loan, the Canadian Term Loan and the
----------
Mexican Term Loan.
Test Period. (a) In connection with the calculation of financial covenant
-----------
compliance on a Pro Forma Basis as required by (S)10.3(i) with respect to any
proposed Permitted Acquisition, the period of four fiscal quarters most recently
ended prior to such Permitted Acquisition, and (b) in connection with the
calculation of the financial covenants set forth in (S)11 hereof following any
Permitted Acquisition, the period of all fiscal quarters (and any portion of a
fiscal quarter) prior to the date of such Permitted Acquisition included in the
calculation of such financial covenant.
Total Australian Commitment. The sum of the Australian Commitments of the
---------------------------
Australian Banks, as in effect from time to time. On the Closing Date, the Total
Australian Commitment shall equal $15,000,000.
Total Commitment. The sum of the Total US Commitment of the US Revolving
----------------
Credit Banks, the Total Australian Commitment of the Australian Banks and the
Total Mexican Commitment of the US Revolving Credit Banks, as in effect from
time to time. On the Closing Date, the Total Commitment shall equal $88,000,000.
Total Commitment Percentage. With respect to each Bank, the percentage set
---------------------------
forth next to such Bank's name on Schedule II hereto, as the same may be
-------- --
adjusted from time to time in accordance with (S)20.
Total Mexican Commitment. The sum of the Mexican Commitments of the US
------------------------
Revolving Credit Banks, as in effect from time to time. On the Closing Date, the
Total Mexican Commitment shall equal $15,000,000.
Total US Commitment. The sum of the US Commitments of the US Revolving
-------------------
Credit Banks, as in effect from time to time. On the Closing Date, the Total US
Commitment shall equal $58,000,000.
Type. As to any US Loan, the Canadian Term Loan or any Mexican Loan, its
----
nature as a Base Rate Loan or a Eurocurrency Rate Loan; as to any Australian
Revolving Credit Loan, its nature as a BBSW Rate Loan or an Australian Base Rate
Loan.
Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
---------------
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Issuing Bank in the ordinary course of its business as a letter of credit issuer
and in effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which the
-------------------------------
US Borrower does not reimburse the Issuing Bank and the US Banks on the date
specified in, and in accordance with, (S)5.2.
<PAGE>
-31-
Unrestricted Subsidiaries. SA Rail, Grande Prairie, Kittanning, GWI Dayton,
-------------------------
Inc., Investors and any other Subsidiaries of the Borrowers formed or acquired
after the Closing Date which the Borrowers have designated as an "Unrestricted
Subsidiary" in accordance with (S)9.14. The Borrowers shall not have the right
to change the status of an Unrestricted Subsidiary to a Restricted Subsidiary
unless such Subsidiary becomes a Guarantor hereunder.
US Banks. Collectively, the US Term Banks and the US Revolving Credit
--------
Banks.
US Borrower. See preamble.
-----------
US Business Day. Any day on which banking institutions in Boston,
---------------
Massachusetts and New York, New York, are open for the transaction of banking
business and, in the case of Eurocurrency Rate Loans, also a day which is a
Eurocurrency Business Day.
US Commitment. With respect to each US Revolving Credit Bank, the amount
-------------
set forth on Schedule II hereto as the amount of such US Bank's commitment to
-----------
make US Revolving Credit Loans to the US Borrower, as the same may be increased
or reduced from time to time; or if such commitment is terminated pursuant to
the provisions hereof, zero.
US Commitment Fee. See (S)2.2(a).
-----------------
US Commitment Percentage. With respect to each US Revolving Credit Bank,
------------------------
the percentage set forth next to such Bank's name on Schedule II hereto, as the
-----------
same may be adjusted in accordance with (S)20.
US Eligible Assignee. Any of (i) a commercial bank organized under the laws
--------------------
of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (ii) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with generally accepted accounting
principles; (iii) a commercial bank organized under the laws of any other
country which is a member of the OECD, or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000; provided that such
--------
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; or (iv) the
central bank of any country which is a member of the OECD; provided in each case
that, so long as any of the Mexican Loans or any commitment to make any of the
Mexican Loans is then outstanding, such bank or other Person is Registered in
Mexico; and provided further that if, but only if, any Event of Default has
-------- -------
occurred and is continuing, a US Eligible Assignee shall be any other bank,
insurance company, commercial finance company or other financial institution or
other Person approved by the Administrative Agent, such approval not to be
unreasonably withheld.
<PAGE>
-32-
US Guaranteed Obligations. See (S)7.1.
-------------------------
US Guarantors. See Preamble.
-------------
US Loans. Collectively, the US Revolving Credit Loans and the US Term Loan.
--------
US Notes. Collectively, the US Revolving Credit Notes and the US Term
--------
Notes.
US Obligations. All obligations of the US Borrower to the US Banks and the
--------------
Administrative Agent (i) under or in respect of or in connection with any of the
US Loans or Letters of Credit and including any interest thereon, US Commitment
Fees or other fees in respect thereof, (ii) under any Rate Hedging Agreement
between the US Borrower and any Bank or affiliate of a Bank, and (iii) all other
obligations under any other instruments at any time evidencing any thereof.
US Restricted Subsidiaries. Each of the Restricted Subsidiaries of the US
--------------------------
Borrower which is organized under the laws of any state of the United States or
the District of Columbia.
US Revolving Credit Banks. The Banks listed on Schedule II, acting in their
------------------------- -----------
role as makers of the US Revolving Credit Loans and Mexican Revolving Credit
Loans in accordance with the provisions hereof.
US Revolving Credit Loan Request. See (S)2.8(a).
--------------------------------
US Revolving Credit Loans. The revolving credit loans to be made by the US
-------------------------
Revolving Credit Banks to the US Borrower pursuant to (S)2.1.1 hereof.
US Revolving Credit Notes. See (S)2.5(a).
-------------------------
US Security Agreement. The US Security Agreement, dated as of the Closing
---------------------
Date among the US Borrower, the US Restricted Subsidiaries and the
Administrative Agent, in form and substance satisfactory to the Agents, granting
the Administrative Agent a first priority security interest in all the property
of the US Borrower and the US Restricted Subsidiaries as security for all the
Obligations (including the Australian Obligations, the Canadian Obligations and
the Mexican Obligations), as the same may be amended, supplemented, modified or
restated and in effect from time to time.
US Security Documents. Collectively, the US Security Agreement, US Stock
---------------------
Pledge Agreement, Note Pledge Agreement and all other instruments and documents
including, without limitation, UCC financing statements required to be executed
or delivered pursuant to any US Security Document.
US Stock Pledge Agreement. The US Stock Pledge Agreement dated as of the
-------------------------
Closing Date between GWI and the Administrative Agent, in form and substance
satisfactory to the Banks and the Agents, pledging 100% of GWI's
<PAGE>
-33-
equity interest in the US Restricted Subsidiaries to the Administrative Agent,
as security for all the Obligations (including the Australian Obligations, the
Canadian Obligations and the Mexican Obligations), as the same may be amended,
supplemented, modified or restated and in effect from time to time.
US Term Banks. The Banks listed on Schedule II, acting in their role as
------------- -----------
makers of the US Term Loan, the Canadian Term Loan or the Mexican Term Loan in
accordance with the provisions hereof.
US Term Loan. The term loan made or to be made by the US Term Banks in
------------
accordance with their US Term Loan Percentages to the US Borrower on the Closing
Date pursuant to (S)3.1(a) in the aggregate principal amount of $10,000,000.
US Term Loan Percentage. With respect to each US Term Bank, the percentage
-----------------------
set forth on Schedule II (subject to adjustment in accordance with (S)20 hereof)
-----------
as such Bank's percentage of the US Term Loan.
US Term Notes. See (S)3.2(a).
-------------
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.
Willamette Valley Note. The Installment Note dated as of February 5, 1997
----------------------
between WPR and Valley Development Initiatives providing for a loan from Valley
Development Initiatives in an aggregate principal amount of not more than
$400,000, having an interest rate of five percent (5%) per annum and a term of
ten years, in substantially the form delivered to the Administrative Agent and
the Banks.
WPR. Willamette & Pacific Railroad, Inc., a New York corporation.
---
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.
<PAGE>
-34-
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have the
meanings assigned to them therein, with the term "instrument" being that
defined under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "(S)" refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
2. THE REVOLVING CREDIT FACILITIES.
-------------------------------
2.1. Commitment to Lend.
------------------
2.1.1. US Revolving Credit Loans. Subject to the terms and conditions
-------------------------
set forth in this Credit Agreement, each of the US Revolving Credit Banks
severally agrees (a) on the Closing Date, to convert the loans and letters
of credit outstanding under the Prior Credit Agreement, if any, to US
Revolving Credit Loans and Letters of Credit under this Credit Agreement
and (ii) to lend to the US Borrower and the US Borrower may borrow, repay,
and reborrow from time to time between the Closing Date and the Maturity
Date upon notice by the US Borrower to the Administrative Agent given in
accordance with (S)2.8, such sums in Dollars and/or, subject to (S)2.11
hereof, in an Optional Currency, as are requested by the US Borrower up to
a maximum aggregate principal amount outstanding (after giving effect to
all amounts requested) at any one time equal to such Bank's US Commitment,
minus the amount of such Bank's US Commitment Percentage of the sum of the
-----
Maximum Drawing Amount and all Unpaid Reimbursement Obligations; provided,
--------
that the sum of the outstanding amount of the US Revolving Credit Loans
(after giving effect to all amounts requested) plus the Maximum Drawing
----
Amount and all Unpaid Reimbursement Obligations does not exceed the Total
US Commitment; further provided, that the sum of the outstanding amount of
------- --------
the US Revolving Credit Loans (after giving effect to all amounts
requested) plus the Maximum Drawing Amount and all
----
<PAGE>
-35-
Unpaid Reimbursement Obligations plus the Dollar Equivalent of the
----
outstanding amount of the Australian Revolving Credit Loans plus the
----
outstanding amount of the Mexican Revolving Credit Loans shall not at any
time exceed the Total Commitment. The US Revolving Credit Loans shall be
made pro rata in accordance with each US Revolving Credit Bank's US
--- ----
Commitment Percentage. Each request for a US Revolving Credit Loan
hereunder shall constitute a representation and warranty by the US Borrower
that the conditions set forth in (S)12 and (S)13 hereof, in the case of the
initial US Revolving Credit Loans to be made on the Closing Date, and (S)13
hereof, in the case of all other US Revolving Credit Loans, have been
satisfied on the date of such request.
2.1.2. Australian Revolving Credit Loans. Subject to the terms and
---------------------------------
conditions set forth in this Credit Agreement, each of the Australian Banks
severally agrees to lend to the Australian Borrower and the Australian
Borrower may borrow, repay, and reborrow from time to time between the
Closing Date and the Maturity Date upon notice by the Australian Borrower
to the Australian Agent and the Administrative Agent given in accordance
with (S)2.8, such sums in Australian Dollars as are requested by the
Australian Borrower up to a maximum aggregate principal amount outstanding
(after giving effect to all amounts requested) at any one time equal to the
Australian Dollar Equivalent of such Australian Bank's Australian
Commitment, provided that the Dollar Equivalent of the sum of the
---------
outstanding amount of the Australian Revolving Credit Loans (after giving
effect to all amounts requested) does not exceed the Total Australian
Commitment, and further provided that the sum of the outstanding Dollar
------- --------
Equivalent amount of the Australian Revolving Credit Loans (after giving
effect to all amounts requested) plus the outstanding amount of the US
----
Revolving Credit Loans plus the outstanding amount of the Mexican Revolving
----
Credit Loans plus the Maximum Drawing Amount and all Unpaid Reimbursement
----
Obligations shall not at any time exceed the Total Commitment. The
Australian Revolving Credit Loans shall be made pro rata in accordance with
--- ----
each Australian Bank's Australian Commitment Percentage. Each request for
an Australian Revolving Credit Loan hereunder shall constitute a
representation and warranty by the Australian Borrower that the conditions
set forth in (S)12 and (S)13 hereof, in the case of the initial Australian
Revolving Credit Loans to be made on the Closing Date, and (S)13 hereof, in
the case of all other Australian Revolving Credit Loans, have been
satisfied on the date of such request.
2.1.3. Mexican Revolving Credit Loans. Subject to the terms and
------------------------------
conditions set forth in this Credit Agreement, each of the US Revolving
Credit Banks severally agrees to lend to the Mexican Borrower and the
Mexican Borrower may borrow, repay, and reborrow from time to time between
the Closing Date and the Maturity Date upon notice by the Mexican Borrower
to the Administrative Agent given in accordance with (S)2.8, such sums in
Dollars as are requested by the Mexican Borrower up to a maximum aggregate
principal amount outstanding (after giving effect
<PAGE>
-36-
to all amounts requested) at any one time equal to such US Revolving Credit
Bank's Mexican Commitment, provided that the sum of the outstanding amount
--------
of the Mexican Revolving Credit Loans (after giving effect to all amounts
requested) does not exceed the Total Mexican Commitment, and further
-------
provided that the sum of the Mexican Revolving Credit Loans (after giving
--------
effect to all amounts requested) plus the outstanding amount of the US
----
Revolving Credit Loans plus the outstanding Dollar Equivalent amount of the
----
Australian Revolving Credit Loans plus the Maximum Drawing Amount and all
----
Unpaid Reimbursement Obligations shall not at any time exceed the Total
Commitment. The Mexican Revolving Credit Loans shall be made pro rata in
--- ----
accordance with each US Revolving Credit Bank's Mexican Commitment
Percentage. Each request for a Mexican Revolving Credit Loan hereunder
shall constitute a representation and warranty by the Mexican Borrower that
the conditions set forth in (S)12 and (S)13 hereof, in the case of the
initial Mexican Revolving Credit Loans to be made on the Closing Date, and
(S)13 hereof, in the case of all other Mexican Revolving Credit Loans, have
been satisfied on the date of such request.
2.2. Commitment Fee.
--------------
(a) The US Borrower hereby agrees to pay to the Administrative Agent
for the accounts of the US Revolving Credit Banks in accordance with their
respective US Commitment Percentages, a commitment fee (the "US Commitment
-------------
Fee") at the applicable Commitment Fee Rate per annum on the average daily
---
amount during each calendar quarter or portion thereof from the Closing
Date to the Maturity Date by which the Total US Commitment exceeds the sum
of the outstanding principal amount of US Revolving Credit Loans, plus the
----
Maximum Drawing Amount and all Unpaid Reimbursement Obligations.
(b) The Australian Borrower hereby agrees to pay in the Australian
Dollar Equivalent to the Australian Agent for the accounts of the
Australian Banks in accordance with their respective Australian Commitment
Percentages a commitment fee (the "Australian Commitment Fee") at the
-------------------------
applicable Commitment Fee Rate per annum on the average daily amount during
each calendar quarter or portion thereof from the Closing Date to the
Maturity Date by which the Total Australian Commitment exceeds the Dollar
Equivalent of the sum of the outstanding principal amount of Australian
Revolving Credit Loans.
(c) The Mexican Borrower hereby agrees to pay to the Administrative
Agent for the accounts of the US Revolving Credit Banks in accordance with
their respective Mexican Commitment Percentages a commitment fee (the
"Mexican Commitment Fee") at the applicable Commitment Fee Rate per annum
----------------------
on the average daily amount during each calendar quarter or portion thereof
from the Closing Date to the Maturity Date by which the Total Mexican
Commitment exceeds the sum of the outstanding principal amount of Mexican
Revolving Credit Loans.
<PAGE>
-37-
(d) The Commitment Fees shall be payable quarterly in arrears on the
last day of each calendar quarter for the immediately preceding calendar
quarter commencing on the first such date following the Closing Date, with
a final payment on the Maturity Date or any earlier date on which the
applicable Commitments shall terminate.
2.3. Reduction of Commitments.
------------------------
(a) The US Borrower shall have the right at any time and from time to
time upon five (5) US Business Days prior written notice to the
Administrative Agent to reduce by $500,000 or an integral multiple thereof
or terminate entirely the Total US Commitment, whereupon the US Commitments
of the US Revolving Credit Banks shall be reduced pro rata in accordance
--- ----
with their respective US Commitment Percentages of the amount specified in
such notice or, as the case may be, terminated. Promptly after receiving
any notice of the US Borrower delivered pursuant to this (S)2.3(a), the
Administrative Agent will notify the US Revolving Credit Banks of the
substance thereof. Upon the effective date of any such reduction or
termination, the US Borrower shall pay to the Administrative Agent for the
respective accounts of the US Revolving Credit Banks the full amount of any
US Commitment Fee then accrued on the amount of the reduction. No reduction
or termination of the US Commitments may be reinstated.
(b) The Australian Borrower shall have the right at any time and from
time to time upon five (5) Australian Business Days prior written notice to
the Australian Agent to reduce by $500,000 or an integral multiple thereof
or terminate entirely the Total Australian Commitment, whereupon the
Australian Commitments of the Australian Banks shall be reduced pro rata in
--- ----
accordance with their respective Australian Commitment Percentages of the
amount specified in such notice or, as the case may be, terminated.
Promptly after receiving any notice of the Australian Borrower delivered
pursuant to this (S)2.3(b), the Australian Agent will notify the Australian
Banks and the Administrative Agent of the substance thereof. Upon the
effective date of any such reduction or termination, the Australian
Borrower shall pay to the Australian Agent for the respective accounts of
the Australian Banks the full amount of any Australian Commitment Fee then
accrued on the amount of the reduction. No reduction or termination of the
Total Australian Commitments may be reinstated.
(c) The Mexican Borrower shall have the right at any time and from
time to time upon five (5) Mexican Business Days prior written notice to
the Administrative Agent to reduce by $500,000 or an integral multiple
thereof or terminate entirely the Total Mexican Commitment, whereupon the
Mexican Commitments of the US Revolving Credit Banks shall be reduced pro
---
rata in accordance with their respective Mexican Commitment Percentages of
----
the amount specified in such notice or, as the case may be, terminated.
Promptly after receiving any notice of the
<PAGE>
-38-
Mexican Borrower delivered pursuant to this (S)2.3(c), the Administrative
Agent will notify the US Revolving Credit Banks of the substance thereof.
Upon the effective date of any such reduction or termination, the Mexican
Borrower shall pay to the Administrative Agent for the respective accounts
of the US Revolving Credit Banks the full amount of any Mexican Commitment
Fee then accrued on the amount of the reduction. No reduction or
termination of the Total Mexican Commitments may be reinstated.
2.4. Reduction of Optional Currency Borrowings. The principal amount
-----------------------------------------
available to the US Borrower in Optional Currencies pursuant to (S)2.11 hereof
shall be reduced pro rata by any amount by which the Total US Commitment is
--- ----
reduced under (S)2.3(a) hereof.
2.5. The US Revolving Credit Notes; Australian Revolving Credit Loan
---------------------------------------------------------------
Accounts; Mexican Revolving Credit Notes.
- ----------------------------------------
(a) The US Revolving Credit Loans shall be evidenced by separate
promissory notes of the US Borrower in substantially the form of Exhibit
-------
A-1 hereto (each a "US Revolving Credit Note"), dated as of the Closing
--- ------------------------
Date (or other such date on which a US Revolving Credit Bank may become a
party hereto in accordance with (S)20 hereof) and completed with
appropriate insertions. One US Revolving Credit Note shall be payable to
the order of each US Revolving Credit Bank in a principal amount equal to
such Bank's US Commitment on the Closing Date. The US Borrower irrevocably
authorizes each US Revolving Credit Bank to make or cause to be made, at or
about the time of the Drawdown Date of any US Revolving Credit Loan or at
the time of receipt of any payment of principal on such US Revolving Credit
Bank's US Revolving Credit Notes, an appropriate notation on such US
Revolving Credit Bank's Note Record reflecting the making of such US
Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the US Revolving Credit Loans set forth on such
Bank's Note Record shall be prima facie evidence of the principal amount
----- -----
thereof owing and unpaid to such US Revolving Credit Bank, but the failure
to record, or any error in so recording, any such amount on such US
Revolving Credit Bank's Note Record shall not limit or otherwise affect the
obligations of the US Borrower hereunder or under any US Revolving Credit
Notes to make payments of principal of or interest on any US Revolving
Credit Notes when due.
(b) The obligation of the Australian Borrower to repay the Outstanding
principal amount of any and all Australian Revolving Credit Loans, plus
interest at the applicable BBSW Rate or Australian Base Rate, as
applicable, accrued thereon, shall be evidenced by this Credit Agreement
and by individual loan accounts (the "Australian Revolving Credit Loan
--------------------------------
Accounts" and individually, an "Australian Revolving Credit Loan Account")
-------- ----------------------------------------
maintained by the Australian Agent on its books for each of the Australian
Banks, it being the intention of the parties hereto that,
<PAGE>
-39-
except as provided for in this (S)2.5(b), the Australian Obligations with
respect to Australian Revolving Credit Loans are to be evidenced only as
stated herein and therein and not by separate promissory notes. The
Australian Borrower irrevocably authorizes the Australian Agent to make or
cause to be made, in connection with a Drawdown Date of any Australian
Revolving Credit Loan or at the time of receipt of any payment of principal
on any Australian Bank's Australian Revolving Credit Loan Account, an
appropriate notation on the Australian Agent's records, reflecting the
making of the Australian Revolving Credit Loan or the receipt of such
payment (as the case may be). The outstanding amount of the Australian
Revolving Credit Loans set forth on the Australian Agent's records shall be
prima facie evidence of the principal amount thereof owing and unpaid to
----- -----
the Australian Banks, but the failure to record, or any error in so
recording, any such amount shall not limit or otherwise affect the
obligations of the Australian Borrower hereunder to make payments of
principal of or interest on any Australian Revolving Credit Loan when due.
(c) The Mexican Revolving Credit Loans shall be evidenced by separate
promissory notes of the Mexican Borrower in substantially the form of
Exhibit A-2 hereto (each a "Mexican Revolving Credit Note"), dated as of
----------- -----------------------------
the Closing Date (or other such date on which a US Revolving Credit Bank
may become a party hereto in accordance with (S)20 hereof) and completed
with appropriate insertions. One Mexican Revolving Credit Note shall be
payable to the order of each US Revolving Credit Bank in a principal amount
equal to such Bank's Mexican Commitment on the Closing Date. The Mexican
Borrower irrevocably authorizes each US Revolving Credit Bank to make or
cause to be made, at or about the time of the Drawdown Date of any Mexican
Revolving Credit Loan or at the time of receipt of any payment of principal
on such US Revolving Credit Bank's Mexican Revolving Credit Notes, an
appropriate notation on such US Revolving Credit Bank's Note Record
reflecting the making of such Mexican Revolving Credit Loan or (as the case
may be) the receipt of such payment. The outstanding amount of the Mexican
Revolving Credit Loans set forth on such Bank's Note Record shall be prima
-----
facie evidence of the principal amount thereof owing and unpaid to such US
-----
Revolving Credit Bank, but the failure to record, or any error in so
recording, any such amount on such US Revolving Credit Bank's Note Record
shall not limit or otherwise affect the obligations of the Mexican Borrower
hereunder or under any Mexican Revolving Credit Notes to make payments of
principal of or interest on any Mexican Revolving Credit Notes when due.
2.6. Reliquification Bills.
---------------------
(a) Each Australian Bank may (at its option) from time to time
prepare bills ("Reliquification Bills"), and without notice to the
---------------------
Australian Borrower, any employee of an Australian Bank may on behalf of
the Australian Borrower draw or endorse (or both) and accept them or
<PAGE>
-40-
require the Australian Borrower to deliver to any Australian Bank,
Reliquification Bills signed and completed by the Australian Borrower in
any manner the Australian Bank may in its discretion require.
(b) Unless otherwise agreed between an Australian Bank and the
Australian Borrower (i) each Reliquification Bill will be for an amount
and term and payable to such Person as such Australian Bank may require;
(ii) the total face value of all outstanding or unpaid Reliquification
Bills prepared by or at the direction of an Australian Bank at any time
will not exceed the moneys Outstanding to that Australian Bank; (iii) such
Australian Bank will be liable for the payment of stamp duty (if any) in
connection with the Reliquification Bills prepared by it; and (iv) such
Australian Bank may draw or accept any Reliquification Bill prepared by it
in its own name and may endorse, realize, discount or negotiate each
Reliquification Bill to any Person and may deal with the proceeds of
realization, discounting or negotiating of Reliquification Bills as it sees
fit.
(c) Each Australian Bank will indemnify the Australian Borrower on
demand against all liabilities, costs and expenses incurred by the
Australian Borrower because it is a party to a Reliquification Bill
prepared by or at the direction of that Australian Bank. This (S)2.6 does
not affect any obligation of the Australian Borrower under this Credit
Agreement. In particular, the obligation of the Australian Borrower to pay
any principal, interest or other moneys under this Credit Agreement is
absolute and unconditional. It is not in any way affected by any liability
of an Australian Bank, contingent or otherwise, under the indemnity in this
(S)2.6. If a Reliquification Bill is presented to the Australian Borrower
and the Australian Borrower discharges it by payment, the amount of that
payment will be deemed to have been applied against the Outstanding
Australian Obligations to that Australian Bank.
2.7. Interest on Revolving Credit Loans. Except as otherwise provided in
----------------------------------
(S)6.10:
(a) Each US Revolving Credit Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at a rate per annum equal to (i) the
Base Rate plus the Applicable Margin with respect to Base Rate Loans as in
----
effect from time to time or (ii) the Eurocurrency Rate determined for such
Interest Period plus the Applicable Margin with respect to Eurocurrency
----
Rate Loans as in effect from time to time.
(b) The rate of interest which shall be payable by the US Borrower on
any portion of the principal of any US Revolving Credit Loans extended to
the US Borrower denominated in an Optional Currency for the time period
outstanding during each Interest Period relating thereto shall be at a rate
per annum equal to the Eurocurrency
<PAGE>
-41-
Rate determined for such Interest Period plus the Applicable Margin
----
with respect to Eurocurrency Rate Loans as in effect from time to time.
(c) Each Australian Revolving Credit Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last day
of the Interest Period with respect thereto at a rate per annum equal to
(i) the BBSW Rate determined for such Interest Period plus the Applicable
----
Margin with respect to BBSW Rate Loans as in effect from time to time and
(ii) the Australian Base Rate determined for such Interest Period plus the
----
Applicable Margin with respect to Australian Base Rate Loans as in effect
from time to time.
(d) Each Mexican Revolving Credit Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last day
of the Interest Period with respect thereto at a rate per annum equal to
(i) the Base Rate plus the Applicable Margin with respect to Base Rate
----
Loans as in effect from time to time or (ii) the Eurocurrency Rate
determined for such Interest Period plus the Applicable Margin with respect
----
to Eurocurrency Rate Loans as in effect from time to time.
(e) The applicable Borrower promises to pay interest on the
Outstanding amount of its Revolving Credit Loans on each Interest Payment
Date with respect thereto.
2.8. Requests for Revolver Loans.
---------------------------
(a) The US Borrower shall give to the Administrative Agent written
notice in the form of Exhibit C-1 hereto (or telephonic notice confirmed in
-----------
a writing in the form of Exhibit C-1 hereto) of each US Revolving Credit
-----------
Loan requested hereunder (a "US Revolving Credit Loan Request") not later
--------------------------------
than (a) one (1) US Business Day prior to any Drawdown Date of any Base
Rate Loan or (b) three (3) Eurocurrency Business Days prior to any Drawdown
Date of any Eurocurrency Rate Loan. Each such notice shall specify (i) the
principal amount in Dollars of the US Revolving Credit Loan requested
stated either in Dollars or, subject to (S)2.10 hereof, in an Optional
Currency, (ii) the proposed Drawdown Date of such US Revolving Credit Loan,
(iii) the Interest Period for such US Revolving Credit Loan, and (iv) the
Type of such US Revolving Credit Loan. Promptly upon receipt of any such
notice, the Administrative Agent shall notify each of the US Revolving
Credit Banks thereof. Each such notice shall be irrevocable and binding on
the US Borrower and shall obligate the US Borrower to accept the requested
Loan on the proposed Drawdown Date thereof. Each US Revolving Credit Loan
Request shall be in a minimum aggregate amount of $500,000 or an integral
multiple thereof or the equivalent thereof in an Optional Currency.
(b) The Australian Borrower shall give to the Australian Agent and
the Administrative Agent written notice in the form of Exhibit C-2
------- ---
<PAGE>
-42-
hereto (or telephonic notice confirmed in a writing in the form of Exhibit
-------
C-2 hereto) of each Australian Revolving Credit Loan requested hereunder (a
---
"Australian Revolving Credit Loan Request") not later than (a) one (1)
----------------------------------------
Australian Business Day prior to the Drawdown Date of any Australian Base
Rate Loan or (b) three (3) Australian Business Days prior to any Drawdown
Date of any BBSW Rate Loan. Each such notice shall specify (i) the
principal amount in Australian Dollars of the Australian Revolving Credit
Loan requested, (ii) the proposed Drawdown Date of such Australian
Revolving Credit Loan, (iii) the Interest Period for such Australian
Revolving Credit Loan and (iv) the Type of such Australian Revolving Credit
Loan. Promptly upon receipt of any such notice, the Australian Agent shall
notify each of the Australian Banks and the Administrative Agent thereof.
Each such notice shall be irrevocable and binding on the Australian
Borrower and shall obligate the Australian Borrower to accept the requested
Loan on the proposed Drawdown Date thereof. Each Australian Revolving
Credit Loan Request shall be in a minimum aggregate amount of Aus. $250,000
or an integral multiple thereof.
(c) The Mexican Borrower shall give to the Administrative Agent
written notice in the form of Exhibit C-3 hereto (or telephonic notice
------- ---
confirmed in a writing in the form of Exhibit C-3 hereto) of each Mexican
------- ---
Revolving Credit Loan requested hereunder (a "Mexican Revolving Credit Loan
-----------------------------
Request") not later than (a) one (1) Mexican Business Day prior to any
-------
Drawdown Date of any Base Rate Loan or (b) three (3) Eurocurrency Business
Days prior to any Drawdown Date of any Eurocurrency Rate Loan. Each such
notice shall specify (i) the principal amount in Dollars of the Mexican
Revolving Credit Loan requested, (ii) the proposed Drawdown Date of such
Mexican Revolving Credit Loan, (iii) the Interest Period for such Mexican
Revolving Credit Loan and (iv) the Type of such Mexican Revolving Credit
Loan. Promptly upon receipt of any such notice, the Administrative Agent
shall notify each of the US Revolving Credit Banks thereof. Each such
notice shall be irrevocable and binding on the Mexican Borrower and shall
obligate the Mexican Borrower to accept the requested Loan on the proposed
Drawdown Date thereof. Each Mexican Revolving Credit Loan Request shall be
in a minimum aggregate amount of $500,000 or a whole multiple of $250,000
in excess thereof.
2.9. US Borrower's Conversion Options; Continuation of Loans.
-------------------------------------------------------
2.9.1. Conversion to Different Type of US Revolving Credit Loan. The
--------------------------------------------------------
US Borrower may elect from time to time to convert any outstanding US
Revolving Credit Loan (other than US Revolving Credit Loans extended to the
US Borrower denominated in an Optional Currency which shall solely be made
as Eurocurrency Rate Loans) to a US Revolving Credit Loan of another Type,
provided that (i) with respect to any such conversion of a Loan to a Base
Rate Loan, the US Borrower shall give the Administrative Agent at least one
(1) US Business Day prior
<PAGE>
-43-
written notice of such election; (ii) with respect to any such conversion
of a Base Rate Loan to a Eurocurrency Rate Loan, the US Borrower shall give
the Administrative Agent at least three (3) Eurocurrency Business Days
prior written notice of such election; (iii) with respect to any such
conversion of a Eurocurrency Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period with
respect thereto; (iv) no Base Rate Loan may be converted into a
Eurocurrency Rate Loan when any Default or Event of Default has occurred
and is continuing; and (v) no more than ten (10) Eurocurrency Rate Loans
and Canadian Eurodollar Loans (collectively) having different Interest
Periods may be outstanding at any time. On the date on which such
conversion is being made, each US Bank shall take such action as is
necessary to transfer its US Commitment Percentage of such US Revolving
Credit Loans to its Domestic Lending Office or its Eurocurrency Lending
Office, as the case may be. All or any part of outstanding US Revolving
Credit Loans of any Type may be converted into a US Revolving Credit Loan
of another Type as provided herein, provided that any partial conversion
shall be in an aggregate principal amount of $500,000 or a whole multiple
thereof. Each Conversion Request relating to the conversion of a US
Revolving Credit Loan to a Eurocurrency Rate Loan shall be irrevocable by
the US Borrower.
2.9.2. Continuation of Type of US Revolving Credit Loan. Any US
------------------------------------------------
Revolving Credit Loan of any Type may be continued by the US Borrower as a
US Revolving Credit Loan of the same Type upon the expiration of an
Interest Period with respect thereto by compliance by the US Borrower with
the notice provisions contained in (S)2.9.1; provided that (a) as to any
--------
Eurocurrency denominated in Dollars, no such Eurocurrency Rate Loan may be
continued as such when any Default or Event of Default has occurred and is
continuing, but shall be automatically converted to a Base Rate Loan on the
last day of the first Interest Period relating thereto ending during the
continuance of any Default or Event of Default of which officers of the
Administrative Agent active upon the US Borrower's account have actual
knowledge; and (b) as to any Eurocurrency Rate Loans denominated in an
Optional Currency, no such Eurocurrency Rate Loan may be continued as such
when a Default or Event of Default has occurred or is continuing or the
provisions of (S)2.11 hereof have not or cannot be met at the time of such
continuation, but shall be repaid by the US Borrower on the last day of the
Interest Period relating thereto. In the event that the US Borrower fails
to provide any such notice with respect to the continuation of any
Eurocurrency Rate Loan as such, then (a) such Eurocurrency Rate Loan
denominated in Dollars shall be automatically converted to a Base Rate Loan
on the last day of the first Interest Period relating thereto; and (b) such
Eurocurrency Rate Loan denominated in an Optional Currency shall be repaid
on the last day of the Interest Period relating thereto. The Administrative
Agent shall notify the US Banks promptly when any such automatic conversion
contemplated by this (S)2.9 is scheduled to occur.
<PAGE>
-44-
2.9.3. Eurocurrency Rate Loans. Any conversion by the US Borrower to
-----------------------
or from Eurocurrency 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 Eurocurrency Rate Loans having the same
Interest Period shall not be less than $500,000 or a whole multiple of
$500,000 (or, in the case of a Eurocurrency Rate Loan denominated in an
Optional Currency, that whole number which is nearest the Dollar Equivalent
of $500,000, rounded to the nearest one thousandth) in excess thereof.
2.10. Mexican Borrower's Conversion Options; Continuation of Loans.
------------------------------------------------------------
2.10.1. Conversion to Different Type of Mexican Revolving Credit
--------------------------------------------------------
Loan. The Mexican Borrower may elect from time to time to convert any
----
outstanding Mexican Revolving Credit Loan to a Mexican Revolving Credit
Loan of another Type, provided that (i) with respect to any such conversion
to a Base Rate Loan, the Mexican Borrower shall give the Administrative
Agent at least one (1) Mexican Business Day prior written notice of such
election; (ii) with respect to any such conversion of a Base Rate Loan to a
Eurocurrency Rate Loan, the Mexican Borrower shall give the Administrative
Agent at least three (3) Eurocurrency Business Days prior written notice of
such election; (iii) with respect to any such conversion of a Eurocurrency
Rate Loan into a Base Rate Loan, such conversion shall only be made on the
last day of the Interest Period with respect thereto; (iv) no Base Rate
Loan may be converted into a Eurocurrency Rate Loan when any Default or
Event of Default has occurred and is continuing; and (v) no more than ten
(10) Eurocurrency Rate Loans and Canadian Eurodollar Loans (collectively)
having different Interest Periods may be outstanding at any time. All or
any part of outstanding Mexican Revolving Credit Loans of any Type may be
converted into a Mexican Revolving Credit Loan of another Type as provided
herein, provided that any partial conversion shall be in an aggregate
principal amount of $500,000 or a whole multiple of $250,000 in excess
thereof. Each Conversion Request relating to the conversion of a Mexican
Revolving Credit Loan to a Eurocurrency Rate Loan shall be irrevocable by
the Mexican Borrower.
2.10.2. Continuation of Type of Mexican Revolving Credit Loan. Any
-----------------------------------------------------
Mexican Revolving Credit Loan of any Type may be continued by the Mexican
Borrower as a Mexican Revolving Credit Loan of the same Type upon the
expiration of an Interest Period with respect thereto by compliance by the
Mexican Borrower with the notice provisions contained in (S)2.10.1;
provided that no such Eurocurrency Rate Loan may be continued as such when
--------
any Default or Event of Default has occurred and is continuing, but shall
be automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating thereto ending during the continuance of any
Default or Event of Default of which officers of the Administrative Agent
active upon the Mexican
<PAGE>
-45-
Borrower's account have actual knowledge. In the event that the Mexican
Borrower fails to provide any such notice with respect to the continuation
of any Eurocurrency Rate Loan as such, then such Eurocurrency Rate Loan
shall be automatically converted to a Base Rate Loan on the last day of the
first Interest Period relating thereto. The Administrative Agent shall
notify the US Revolving Credit Banks promptly when any such automatic
conversion contemplated by this (S)2.10 is scheduled to occur.
2.10.3. Eurocurrency Rate Loans. Any conversion by the Mexican
-----------------------
Borrower to or from Eurocurrency 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 Eurocurrency Rate Loans having the same
Interest Period shall not be less than $500,000 or a whole multiple of
$250,000 in excess thereof.
2.11. Optional Currencies.
-------------------
(a) Subject to the provisions of (S)2.1.1, the US Borrower may
elect, prior to the Maturity Date, to draw down US Revolving Credit
Loans or convert a portion of the funds available to the US Borrower
under this Credit Agreement in, or to, an Optional Currency (if
any); provided that the aggregate amount of US Revolving Credit
-------- ----
Loans (after giving effect to all amounts requested) made in any
Optional Currency shall not at any time exceed the Dollar Equivalent
of $5,000,000 (as such amount may be reduced pursuant to (S)2.4 from
time to time). In order to exercise the foregoing option the US
Borrower must deliver a written notice, subject to any other notice
requirements under this Credit Agreement, to the Administrative
Agent, which shall give to the US Revolving Credit Banks prompt
notice thereof, designating the currency into which the designated
portion of the US Revolving Credit Loans is to be drawn down or, as
the case may be, converted, at least five (5) US Business Days prior
to the commencement of an Interest Period relating to such portion
of the US Revolving Credit Loans and any such conversion shall be
effected on such date. If any such notice is not delivered to the
Administrative Agent by the US Borrower within the required time,
the US Borrower shall be deemed to have elected that the relevant
portion of the principal amount of the US Revolving Credit Loans
continue to be denominated in the currency in which it then
currently stands denominated.
(b) If any US Bank determines (which determination shall be
conclusive), on or prior to the second US Business Day preceding the
first day of any Interest Period during which a portion of the
principal of the US Revolving Credit Loans is to be denominated in
any Optional Currency, that the Optional Currency is not freely
transferable and convertible into Dollars or
<PAGE>
-46-
that it will be impracticable for such US Bank to fund the US
Revolving Credit Loans in such Optional Currency, then such US Bank
shall so notify the Administrative Agent, which notification shall
be given immediately by the Administrative Agent to the US Borrower,
and that portion of the principal amount of the US Revolving Credit
Loans shall, notwithstanding any contrary election by the US
Borrower or any other provisions hereof, be denominated in Dollars
and be in the form of a Base Rate Loan.
(c) For all purposes of this Credit Agreement, the amount in
one currency which shall be equivalent on any particular date to a
specified amount in another currency shall be that amount (as
conclusively ascertained by the Administrative Agent) in the first
currency which is or could be purchased by the Administrative Agent
(in accordance with its normal banking practices) with such
specified amount in the second currency in any recognized
Eurocurrency Interbank Market selected by the Administrative Agent
in good faith for delivery on such date at the spot rate of exchange
prevailing at or about 11:00 a.m., London time (or as soon
thereafter as practicable), on such date.
(d) If at any time prior to the Maturity Date, the aggregate
amount of US Revolving Credit Loans made in any Optional Currency
shall exceed the Dollar Equivalent of $5,000,000 as a result of
fluctuations in respective currency conversion rates for three (3)
or more consecutive US Business Days, the US Borrower shall pay or
cause to be paid immediately, upon demand made by the Administrative
Agent, for the pro rata accounts of the US Banks, such amounts as
are sufficient to eliminate such excess and to reduce the aggregate
principal amount outstanding to the Dollar Equivalent of $5,000,000.
2.12. Funds for US Revolving Credit Loans.
-----------------------------------
2.12.1. Funding Procedures. Not later than 2:00 p.m. (Boston time)
------------------
on the proposed Drawdown Date of any US Revolving Credit Loan, each of the
US Revolving Credit Banks will make available to the Administrative Agent
at its head office, in immediately available funds, the amount in Dollars
or in the designated Optional Currency of such Bank's US Commitment
Percentage of such US Revolving Credit Loans made or to be made on such
date. Upon receipt from each US Revolving Credit Bank of such amount, and
upon receipt of the documents required by (S)(S)12 and 13 hereof and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Administrative Agent will make available to the US Borrower
the aggregate amount of such US Revolving Credit Loans made available to
the Administrative Agent by the US Revolving Credit Banks. The failure or
refusal of any US Revolving Credit Bank to make available to the
Administrative Agent at the aforesaid time and place on any Drawdown Date
the amount of its
<PAGE>
-47-
US Commitment Percentage of the requested US Revolving Credit Loans shall
not relieve any other US Revolving Credit Bank from its several obligation
hereunder to make available to the Administrative Agent the amount of such
other US Bank's Commitment Percentage of any requested US Revolving Credit
Loans. In the event that the Administrative Agent becomes aware of any
Bank's failure to make available the amount of its US Commitment Percentage
of any requested US Revolving Credit Loan, the Administrative Agent shall
notify the US Borrower of the identity of such Bank and the amount such
Bank has not made available to the Administrative Agent.
2.12.2. Advances by Administrative Agent. The Administrative Agent
--------------------------------
may, unless notified to the contrary by any US Revolving Credit Bank prior
to a Drawdown Date of a US Revolving Credit Loan, assume that such Bank has
made available to the Administrative Agent on such Drawdown Date the amount
of such Bank's US Commitment Percentage of the US Revolving Credit Loans to
be made on such Drawdown Date, and the Administrative Agent may (but it
shall not be required to), in reliance upon such assumption, make available
to the US Borrower a corresponding amount. If any US Revolving Credit Bank
makes available to the Administrative Agent such amount on a date after
such Drawdown Date, such Bank shall pay to the Administrative Agent on
demand an amount equal to the product of (a) the average computed for the
period referred to in clause (c) below, of the Federal Funds Effective
Rate, times (b) the amount of such Bank's US Commitment Percentage of such
-----
US Revolving Credit 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 Bank's US Commitment
Percentage of such US Revolving Credit Loans shall become immediately
available to the Administrative Agent, and the denominator of which is 365.
A statement of the Administrative Agent submitted to such Bank with respect
to any amounts owing under this paragraph shall be prima facie evidence of
----- -----
the amount due and owing to the Administrative Agent by such Bank. If the
amount of such Bank's US Commitment Percentage of such US Revolving Credit
Loans is not made available to the Administrative Agent by such Bank within
three (3) US Business Days following such Drawdown Date, the Administrative
Agent shall be entitled to recover such amount from the US Borrower on
demand, with interest thereon at the rate per annum applicable to the US
Revolving Credit Loans made on such Drawdown Date.
2.13. Funding Procedures for Australian Revolving Credit Loans.
--------------------------------------------------------
2.13.1. Funding Procedures. Not later than 12:00 noon (Adelaide
------------------
time) on the proposed Drawdown Date of any Australian Revolving Credit
Loan, each of the Australian Banks will make available to the Australian
Agent, at its office, in immediately available funds, the amount in
Australian Dollars of such Bank's Australian Commitment Percentage of such
Australian Revolving Credit Loans made or to be
<PAGE>
-48-
made on such date. Upon receipt from each such Bank of such amount, and
upon receipt of the documents required by (S)(S)11, 12 and 13 hereof and
the satisfaction of the other conditions set forth therein, to the extent
applicable, the Australian Agent will make available to the Australian
Borrower the aggregate amount of such Australian Revolving Credit Loans
made available to the Australian Agent by the Australian Banks. The failure
or refusal of any Australian Bank to make available to the Australian Agent
at the aforesaid time and place on any Drawdown Date the amount of its
Australian Commitment Percentage of such requested Australian Revolving
Credit Loans shall not relieve any other Australian Bank from its several
obligation hereunder to make available to the Australian Agent the amount
of such other Bank's Australian Commitment Percentage of such Australian
Revolving Credit Loans. In the event that the Australian Agent becomes
aware of any Australian Bank's failure to make available the amount of its
Australian Commitment Percentage of any requested Australian Revolving
Credit Loan, the Australian Agent shall notify the Australian Borrower and
the Administrative Agent of the identity of such Australian Bank and the
amount such Bank has not made available to the Australian Agent.
2.13.2. Advances by Australian Agent. The Australian Agent may,
----------------------------
unless notified to the contrary by any Australian Bank prior to a Drawdown
Date of an Australian Revolving Credit Loan, assume that such Bank has made
available to the Australian Agent on such Drawdown Date the amount of such
Bank's Australian Commitment Percentage of such Australian Revolving Credit
Loans to be made on such Drawdown Date, and the Australian Agent may (but
it shall not be required to), in reliance upon such assumption, make
available to the Australian Borrower a corresponding amount. If any
Australian Bank makes available to the Australian Agent such amount on a
date after such Drawdown Date, such Bank shall pay to the Australian 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 weighted average
interest rate paid by the Australian Agent for funds acquired by the
Australian Agent during each day included in such period, times (b) the
-----
amount of such Bank's Australian Commitment Percentage of such Australian
Revolving Credit 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 Bank's Australian Commitment
Percentage of such Australian Revolving Credit Loans shall become
immediately available to the Australian Agent, and the denominator of which
is 365. A statement of the Australian Agent submitted to such Bank with
respect to any amounts owing under this paragraph shall be prima facie
----- -----
evidence of the amount due and owing to the Australian Agent by such Bank.
If the amount of such Australian Bank's Australian Commitment Percentage of
such Australian Revolving Credit Loans is not made available to the
Australian Agent by such Bank within three (3) Australian Business Days
following such Drawdown Date, the Australian Agent shall be entitled to
recover such amount from
<PAGE>
-49-
the Australian Borrower on demand, with interest thereon at the rate per
annum applicable to the Australian Revolving Credit Loans made on such
Drawdown Date.
2.14. Funds for Mexican Revolving Credit Loans.
----------------------------------------
2.14.1. Funding Procedures. Not later than 2:00 p.m. (Boston time)
------------------
on the proposed Drawdown Date of any Mexican Revolving Credit Loan, each of
the US Revolving Credit Banks will make available to the Administrative
Agent at the Administrative Agent's Mexican Lending Office, in immediately
available funds, the amount in Dollars of such US Revolving Credit Bank's
Mexican Commitment Percentage of such Mexican Revolving Credit Loans made
or to be made on such date. Upon receipt from each US Revolving Credit Bank
of such amount, and upon receipt of the documents required by (S)(S)12 and
13 hereof and the satisfaction of the other conditions set forth therein,
to the extent applicable, the Administrative Agent will make available to
the Mexican Borrower the aggregate amount of such Mexican Revolving Credit
Loans made available to the Administrative Agent by the US Revolving Credit
Banks. The failure or refusal of any US Revolving Credit Bank to make
available to the Administrative Agent at the aforesaid time and place on
any Drawdown Date the amount of its Mexican Commitment Percentage of the
requested Mexican Revolving Credit Loans shall not relieve any other US
Revolving Credit Bank from its several obligation hereunder to make
available to the Administrative Agent the amount of such other US Revolving
Credit Bank's Commitment Percentage of any requested Mexican Revolving
Credit Loans. In the event that the Administrative Agent becomes aware of
any Bank's failure to make available the amount of its Mexican Commitment
Percentage of any requested Mexican Revolving Credit Loan, the
Administrative Agent shall notify the Mexican Borrower of the identity of
such Bank and the amount such Bank has not made available to the
Administrative Agent.
2.14.2. Advances by Administrative Agent. The Administrative Agent
--------------------------------
may, unless notified to the contrary by any US Revolving Credit Bank prior
to a Drawdown Date of a Mexican Revolving Credit Loan, assume that such
Bank has made available to the Administrative Agent's Mexican Lending
Office on such Drawdown Date the amount of such Bank's Mexican Commitment
Percentage of the Mexican Revolving Credit Loans to be made on such
Drawdown Date, and the Administrative Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the
Mexican Borrower a corresponding amount. If any US Revolving Credit Bank
makes available to the Administrative Agent's Mexican Lending Office such
amount on a date after such Drawdown Date, such Bank shall pay to the
Administrative Agent on demand an amount equal to the product of (a) the
average computed for the period referred to in clause (c) below, of the
Federal Funds Effective Rate, times (b) the amount of such Bank's Mexican
-----
Commitment Percentage of such Mexican Revolving Credit Loans, times (c) a
-----
fraction, the numerator of
<PAGE>
-50-
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 Bank's Mexican
Commitment Percentage of such Mexican Revolving Credit Loans shall become
immediately available to the Administrative Agent, and the denominator of
which is 365. A statement of the Administrative Agent submitted to such
Bank with respect to any amounts owing under this paragraph shall be prima
-----
facie evidence of the amount due and owing to the Administrative Agent by
-----
such Bank. If the amount of such Bank's Mexican Commitment Percentage of
such Mexican Revolving Credit Loans is not made available to the
Administrative Agent by such Bank within three (3) Mexican Business Days
following such Drawdown Date, the Administrative Agent shall be entitled to
recover such amount from the Mexican Borrower on demand, with interest
thereon at the rate per annum applicable to the Mexican Revolving Credit
Loans made on such Drawdown Date.
3. THE TERM LOANS.
--------------
3.1. Commitment to Lend.
------------------
(a) Subject to the terms and conditions set forth in this
Credit Agreement, each US Term Bank agrees to lend to the US Borrower
on the Closing Date the amount of its US Term Loan Percentage of the
principal amount of $10,000,000 (the "US Term Loan").
-- ---------
(b) Subject to the terms and conditions set forth in this
Credit Agreement, each US Term Bank agrees to lend Canadian Dollars to
the Canadian Borrower on the Closing Date the amount of its Canadian
Term Loan Percentage of an amount equal to the Canadian Dollar
Equivalent of the principal amount of $22,000,000 (the "Canadian Term
-------- ----
Loan").
----
(c) Subject to the terms and conditions set forth in this
Credit Agreement, each US Term Bank agrees to lend Dollars to the
Mexican Borrower on the Closing Date the amount of its Mexican Term
Loan Percentage of the principal amount of $30,000,000 (the "Mexican
Term Loan").
3.2. The US Term Notes; Canadian Term Notes; Mexican Term Notes.
----------------------------------------------------------
(a) The US Term Loan shall be evidenced by separate promissory
notes of the US Borrower in substantially the form of Exhibit B-1
-----------
hereto (each a "US Term Note"), dated the Closing Date (or such other
------------
date on which a US Bank may become a party hereto in accordance with
ss.20 hereof) and completed with appropriate insertions. One US Term
Note shall be payable to the order of each US Term Bank in a principal
amount equal to such Bank's US Term Loan Percentage of the US Term Loan
and representing the Obligation of the US Borrower to pay
<PAGE>
-51-
to such Bank such principal amount, plus interest accrued thereon, as
set forth below. The US Borrower irrevocably authorizes each US Term
Bank to make or cause to be made a notation on such Bank's Note Record
reflecting the original principal amount of such Bank's US Term Loan
Percentage of the US Term Loan and, at or about the time of such Bank's
receipt of any principal payment on such Bank's US Term Note, an
appropriate notation on such Bank's Note Record reflecting such
payment. The aggregate unpaid amount set forth on such Bank's Note
Record shall be prima facie evidence of the principal amount thereof
----- -----
owing and unpaid to such Bank, but the failure to record, or any error
in so recording, any such amount on such Bank's Note Record shall not
affect the obligations of the US Borrower hereunder or under any US
Term Note to make payments of principal of and interest on any US Term
Note when due.
(b) The Canadian Term Loan shall be evidenced by separate
promissory notes of the Canadian Borrower in substantially the form of
Exhibit B-2 hereto (a "Canadian Term Note"), dated the Closing Date (or
----------- ------------------
such other date on which a US Term Bank may become a party hereto in
accordance with (S) 20 hereof) and completed with appropriate
insertions. One Canadian Term Note shall be payable to the order of
each US Term Bank in a principal amount equal to such Bank's Canadian
Term Loan Percentage of the Canadian Term Loan and representing the
Obligation of the Canadian Borrower to pay to such Bank such principal
amount, plus interest accrued thereon, as set forth below. The Canadian
Borrower irrevocably authorizes each US Term Bank to make or cause to
be made a notation on such Bank's Note Record reflecting the original
principal amount of such Bank's Canadian Term Loan Percentage of the
Canadian Term Loan and, at or about the time of such Bank's receipt of
any principal payment on such Bank's Canadian Term Note, an appropriate
notation on such Bank's Note Record reflecting such payment. The
aggregate unpaid amount set forth on such Bank's Note Record shall be
prima facie evidence of the principal amount thereof owing and unpaid
----- -----
to such Bank, but the failure to record, or any error in so recording,
any such amount on such Bank's Note Record shall not affect the
obligations of the Canadian Borrower hereunder or under any Canadian
Term Note to make payments of principal of and interest on any Canadian
Term Note when due.
(c) The Mexican Term Loan shall be evidenced by separate
promissory notes of the Mexican Borrower in substantially the form of
Exhibit B-3 hereto (each a "Mexican Term Note"), dated the Closing Date
----------- -----------------
(or such other date on which a US Term Bank may become a party hereto
in accordance with ss.20 hereof) and completed with appropriate
insertions. One Mexican Term Note shall be payable to the order of each
US Term Bank in a principal amount equal to such Bank's Mexican Term
Loan Percentage of the Mexican Term Loan and representing the
Obligation of the Mexican Borrower to pay to such Bank such principal
amount, plus interest accrued thereon, as set forth below. The Mexican
<PAGE>
-52-
Borrower irrevocably authorizes each US Term Bank to make or cause to
be made a notation on such Bank's Note Record reflecting the original
principal amount of such Bank's Mexican Term Loan Percentage of the
Mexican Term Loan and, at or about the time of such Bank's receipt of
any principal payment on such Bank's Mexican Term Note, an appropriate
notation on such Bank's Note Record reflecting such payment. The
aggregate unpaid amount set forth on such Bank's Note Record shall be
prima facie evidence of the principal amount thereof owing and unpaid
-----------
to such Bank, but the failure to record, or any error in so recording,
any such amount on such Bank's Note Record shall not affect the
obligations of the Mexican Borrower hereunder or under any Mexican Term
Note to make payments of principal of and interest on any Mexican Term
Note when due.
3.3. Schedule of Installment Payments of Principal of Term Loans.
-----------------------------------------------------------
(a) The US Borrower promises to pay to the Administrative
Agent for the account of the US Term Banks, in accordance with their
respective US Term Loan Percentages, the principal amount of the US
Term Loan in twenty (20) consecutive installments as set forth below:
Amount of Each Quarterly
Payment Period Installment
-------------- -----------
December 31, 1999 - September 30, 2000 $250,000
October 1, 2000 - September 30, 2001 375,000
October 1, 2001 - September 30, 2002 500,000
October 1, 2002 - September 30, 2003 625,000
October 1, 2003 - June 30, 2004 750,000
Maturity Date 750,000
(b) The Canadian Borrower promises to pay to the
Administrative Agent for the account of the US Term Banks, in
accordance with their respective Canadian Term Loan Percentages, the
principal amount of the Canadian Term Loan in Canadian Dollars in
twenty (20) consecutive installments as set forth below:
<PAGE>
-53-
<TABLE>
<CAPTION>
Payment Period Amount of Each Quarterly Installment
-------------- ------------------------------------
<S> <C>
December 31, 1999 - June 30, 2004 1.25% of the original principal amount in
Canadian Dollars of the Canadian Term Loan
Maturity Date An amount equal to (i) 76.25% of the original
principal amount of the Canadian Term Loan,
minus (ii) the amount of any prepayments of the
-----
Canadian Term Loan made pursuant to (S)(S) 4.2 or 4.3.
</TABLE>
Notwithstanding the foregoing mandatory repayment schedule,
the US Term Banks and the Canadian Borrower agrees that in no event
shall the aggregate amount of mandatory scheduled repayments of
principal of the Canadian Term Loan exceed twenty-five percent (25%) of
the original principal amount in Canadian Dollars during that period
commencing on the Closing Date and ending on the Maturity Date.
(c) The Mexican Borrower promises to pay to the Administrative
Agent for the account of the US Term Banks, in accordance with their
respective Mexican Term Loan Percentages, the principal amount of the
Mexican Term Loan in twenty (20) consecutive installments as set forth
below:
<TABLE>
<CAPTION>
Amount of Each Quarterly
Payment Period Installment
-------------- -----------
<S> <C>
December 31, 1999 - September 30, 2000 $ 750,000
October 1, 2000 - September 30, 2001 $1,125,000
October 1, 2001 - September 30, 2002 $1,500,000
October 1, 2002 - September 30, 2003 $1,875,000
October 1, 2003 - June 30, 2004 $2,250,000
Maturity Date $2,250,000
</TABLE>
<PAGE>
-54-
(d) Such installments on the US Term Loan, the Canadian Term
Loan and the Mexican Term Loan shall be due and payable on the last US
Business Day, Canadian Business Day or Mexican Business Day (as the
case may be) of each quarter after the Closing Date, commencing on
December 31, 1999, with a final payment on the Maturity Date in an
amount equal to the unpaid balance of the applicable Term Loan;
provided, that, the scheduled payment on the Maturity Date of the
-------- ----
Canadian Term Loan shall be not less than (i) 75% of the original
principal amount of the Canadian Term Loan, minus (ii) the amount of
-----
any prepayments of the Canadian Term Loan made pursuant to (S)(S)
4.2 or 4.3.
3.4. Interest on Term Loans. Except as otherwise provided in (S) 6.10
----------------------
the Outstanding amount of the (a) US Term Loan shall bear interest at the Base
Rate or the Eurocurrency Rate plus the Applicable Margin for Base Rate Loans or
----
Eurocurrency Rate Loans (as the case may be), (b) Canadian Term Loan shall bear
interest at the Canadian Eurodollar Rate or, solely pursuant to (S)(S) 6.4 or
6.5, the CDOR Rate plus the Applicable Margin for Canadian Eurodollar Rate Loans
----
or CDOR Rate Loans (as the case may be) as in effect from time to time and (c)
the Mexican Term Loan shall bear interest at the Base Rate or the Eurocurrency
Rate plus the Applicable Margin for Base Rate Loans or Eurocurrency Rate Loans
----
(as the case may be). Interest shall be payable on each Interest Payment Date
with respect thereto and on the Maturity Date. Any change in the interest rate
resulting from a change in the Base Rate is to be effective at the beginning of
the day of such change in the Base Rate. The Administrative Agent will give the
US Banks, the US Borrower, the Canadian Borrower and the Mexican Borrower prompt
notice in writing of any change in the Base Rate. The US Borrower, Canadian
Borrower and the Mexican Borrower promise to pay interest on the outstanding
amount of the US Term Loan, Canadian Term Loan and Mexican Term Loan, as the
case may be, from the Closing Date until the Maturity Date in accordance with
the provisions of this (S) 3.4.
3.5. Notification by Borrowers.
-------------------------
(a) The US Borrower shall notify the Administrative Agent, such notice
to be irrevocable, at least three (3) Eurocurrency Business Days prior to the
Drawdown Date of the US Term Loan if all or any portion of the US Term Loan is
to bear interest at the Eurocurrency Rate. After the US Term Loan has been made,
the provisions of (S) 2.9 shall apply mutatis mutandis with respect to all or
------- --------
any portion of the US Term Loan so that the US Borrower may have the same
interest rate options with respect to all or any portion of the US Term Loan as
it would be entitled to with respect to the US Revolving Credit Loans.
(b) The Canadian Borrower shall notify the Administrative Agent, such
notice to be irrevocable, at least three (3) Eurocurrency Business Days prior to
the Drawdown Date of the Canadian Term Loan of the Interest Period for the
Canadian Term Loan. After the Canadian Term Loan has been made, so long as the
provisions of (S)(S) 6.4 or 6.5 do not apply, the Canadian Borrower shall
<PAGE>
-55-
deliver to the Administrative Agent at least three (3) Eurocurrency Business
Days prior to the last day of any Interest Period applicable to the Canadian
Term Loan, a Continuation Request in substantially the form of Exhibit C-4
-----------
attached hereto specifying the next subsequent Interest Period for the Canadian
Term Loan.
(c) The Mexican Borrower shall notify the Administrative Agent, such
notice to be irrevocable, at least three (3) Eurocurrency Business Days prior to
the Closing Date if all or any portion of the Mexican Term Loan to be borrowed
on such date is to bear interest at the Eurocurrency Rate. After the Mexican
Term Loan has been made, the provisions of (S) 2.10 shall apply mutatis mutandis
----------------
with respect to all or any portion of the Mexican Term Loan so that the Mexican
Borrower may have the same interest rate options with respect to all or any
portion of the Mexican Term Loan as it would be entitled to with respect to the
Mexican Revolving Credit Loans.
3.6. Amounts, etc. Any portion of the Term Loans bearing interest at
------------
the Eurodollar Rate or the Canadian Eurodollar Rate relating to any Interest
Period shall be in the amount of $500,000 for the US Term Loan, Cdn. $500,000
for the Canadian Term Loan, $500,000 for the Mexican Term Loan or integral
multiples thereof.
3.7. Interest Periods. No Interest Period relating to the Term Loans or
----------------
any portion thereof bearing interest at the Eurodollar Rate or the Canadian
Eurodollar Rate shall extend beyond the date on which the regularly scheduled
installment payments of the principal of the Term Loans is to be made, unless a
portion of the Term Loans at least equal to such installment payments has an
Interest Period ending on such date or, in the case of the US Term Loan or the
Mexican Term Loan, is then bearing interest at the Base Rate.
4. MANDATORY PREPAYMENT OF LOANS.
-----------------------------
4.1. Maturity of Loans. The Loans shall be absolutely due and payable
-----------------
on the Maturity Date. The US Borrower hereby promises to pay to the
Administrative Agent for the pro rata accounts of the US Banks all of the
--- ----
Outstanding US Loans, together with any and all accrued and unpaid interest
thereon, on the Maturity Date. The Canadian Borrower hereby promises to pay to
the Administrative Agent for the pro rata accounts of the US Term Banks, and
--- ----
there shall become absolutely due and payable on the Maturity Date, the
Outstanding Canadian Term Loans, together with any and all accrued and unpaid
interest thereon, on the Maturity Date. The Australian Borrower hereby promises
to pay to the Australian Agent for the respective accounts of the Australian
Banks, and there shall become absolutely due and payable on the Maturity Date,
all of the Outstanding Australian Revolving Credit Loans, together with any and
all accrued and unpaid interest thereon, on the Maturity Date. The Mexican
Borrower hereby promises to pay the Administrative Agent for the respective
accounts of the US Banks all of the Outstanding Mexican Loans, together with any
and all accrued and unpaid interest thereon, on the Maturity Date.
<PAGE>
-56-
4.2. Mandatory Payments of Loans.
---------------------------
4.2.1. Mandatory Repayments of Loans.
-----------------------------
(a) If at any time for any reason (not including
currency fluctuations, which shall be governed by (S)6.2.3.2)
the sum of the outstanding Dollar Equivalent amount of the US
Revolving Credit Loans and the Dollar Equivalent of the
aggregate Letter of Credit Obligations exceeds the Total US
Commitment of the US Revolving Credit Banks, then the
applicable Borrower(s) shall immediately pay the amount of
such excess to the Administrative Agent for the respective
accounts of the applicable US Revolving Credit Banks for
application in the order prescribed in (S)4.2.7.
(b) If at any time for any reason (not including
currency fluctuations, which shall be governed by (S)6.2.3.2)
the sum of the Dollar Equivalent of the outstanding principal
amount of the Australian Revolving Credit Loans exceeds the
Total Australian Commitment then the Australian Borrower shall
immediately pay the amount of such excess to the Australian
Agent, for the respective accounts of the Australian Banks for
application to the Australian Revolving Credit Loans in
accordance with (S)4.2.7.
(c) If at any time for any reason the outstanding
principal amount of the Mexican Revolving Credit Loans exceeds
the Total Mexican Commitment then the Mexican Borrower shall
immediately pay the amount of such excess to the
Administrative Agent, for the respective accounts of the US
Revolving Credit Banks for application to the Mexican
Revolving Credit Loans in accordance with (S)4.2.7.
4.2.2. Mandatory Prepayments from Asset Sales.
--------------------------------------
(a) The US Borrower shall (i) concurrently with each
delivery of the Compliance Certificate pursuant to (S)9.4(c)
hereof, deliver to the Administrative Agent and the US Banks a
statement certified by the principal financial or accounting
officer of the US Borrower setting forth (A) the aggregate
gross consideration for all sales of any assets or group of
related assets (excluding assets sold in the ordinary course
of business and assets sold in connection with sale/leaseback
transactions permitted under (S)10.6) of the US Borrower and
any US Restricted Subsidiary during the most recently ended
fiscal quarter where such asset sale is either permitted
pursuant to (S)10.5.2 or is previously consented to in
writing by the Majority Banks and (B) in reasonable detail, a
computation of the aggregate Net Cash Proceeds from such asset
sales and the deductions taken to arrive at such Net Cash
Proceeds, and (ii) within two (2) US Business Days of delivery
of the statement referred to above, prepay the US
<PAGE>
-57-
Loans and Reimbursement Obligations in accordance with
(S)4.2.7 in an amount equal to the amount by which the
aggregate amount of all Net Cash Proceeds from sales of assets
during such fiscal year exceeds $5,000,000, after taking into
account proceeds of assets sold in prior fiscal quarters of
such fiscal year.
(b) The Australian Borrower shall (i) concurrently
with each delivery of the Compliance Certificate pursuant to
(S)9.4(c) hereof, deliver to the Australian Agent, the
Administrative Agent and the Australian Banks a statement
certified by the principal financial or accounting officer of
the Australian Borrower setting forth (A) the aggregate gross
consideration for all sales of any assets or group of related
assets (other than assets sold in the ordinary course of
business and assets sold in connection with sale/leaseback
transactions permitted under (S)10.6) of the Australian
Borrower, GWAI or any Restricted Subsidiary of GWAI during the
most recently ended fiscal quarter where such asset sale is
either permitted pursuant to (S)10.5.2 or is previously
consented to in writing by the Majority Banks and (B) in
reasonable detail, a computation of the aggregate Net Cash
Proceeds from such assets sales and the deductions taken to
arrive at such Net Cash Proceeds, and (ii) within two (2)
Australian Business Days of delivery of the statement referred
to above, prepay the Australian Revolving Credit Loans in
accordance with (S)4.2.7 in an amount equal to the amount by
which the aggregate amount of all Net Cash Proceeds from sales
of assets during such fiscal year exceeds $2,500,000, after
taking into account proceeds of assets sold in prior fiscal
quarters of such fiscal year.
(c) The Canadian Borrower shall (i) concurrently with
each delivery of the Compliance Certificate pursuant to
(S)9.4(c) hereof, deliver to the Administrative Agent and the
US Banks a statement certified by the principal financial or
accounting officer of the Canadian Borrower setting forth (A)
the aggregate gross consideration for all sales of any assets
or group of related assets (other than assets sold in the
ordinary course of business and assets sold in connection with
sale/leaseback transactions permitted under (S)10.6) of the
Canadian Borrower or any Canadian Guarantor during the most
recently ended fiscal quarter where such asset sale is either
permitted pursuant to (S)10.5.2 or is previously consented to
in writing by the Majority Banks and (B) in reasonable detail,
a computation of the aggregate Net Cash Proceeds from such
assets sales and the deductions taken to arrive at such Net
Cash Proceeds, and (ii) elect an option in accordance with
(S)4.2.7 with regard to the application of the amount by
which the aggregate amount of all Net Cash Proceeds from sales
of assets during such fiscal year exceeds $1,500,000, after
taking into account proceeds of assets sold in prior fiscal
quarters of such fiscal year.
<PAGE>
-58-
(d) The Mexican Borrower shall (i) concurrently with
each delivery of the Compliance Certificate pursuant to
(S)9.4(c) hereof, deliver to the Administrative Agent and the
US Banks a statement certified by the principal financial or
accounting officer of the Mexican Borrower setting forth (A)
the aggregate gross consideration for all sales of any assets
or group of related assets (excluding assets sold in the
ordinary course of business) of the Mexican Borrower and any
Mexican Guarantor during the most recently ended fiscal
quarter where such asset sale is either permitted pursuant to
(S)10.5.2 or is previously consented to in writing by the
Majority Banks and (B) in reasonable detail, a computation of
the aggregate Net Cash Proceeds from such asset sales and the
deductions taken to arrive at such Net Cash Proceeds, and (ii)
within two (2) Mexican Business Days of delivery of the
statement referred to above, prepay the Mexican Loans in
accordance with (S)4.2.7 in an amount equal to the amount by
which the aggregate amount of all Net Cash Proceeds from sales
of assets during such fiscal year exceeds $100,000, after
taking into account proceeds of assets sold in prior fiscal
quarters of such fiscal year.
(e) Notwithstanding anything in clauses (a) through
(d) of this (S)4.2.2 to the contrary, in the event that the
Net Cash Proceeds from all sales of assets or groups of assets
(excluding assets sold in the ordinary course of business) of
the Borrower and the Guarantors during the term of this Credit
Agreement exceeds $20,000,000, then the applicable Borrower or
Borrowers (other than the Canadian Borrower, which may elect
an option pursuant to (S)4.2.7 in satisfaction of such
requirement) shall thereafter prepay the applicable Loans in
accordance with (S)4.2.7 in an amount equal to the amount by
which the aggregate amount of all Net Cash Proceeds from such
sales exceeds $20,000,000.
4.2.3. Mandatory Prepayments from Equity Sales.
---------------------------------------
(a) In the event that the US Borrower or any US
Restricted Subsidiary shall after the Closing Date sell or
issue any shares of its stock, options (other than stock
options awarded to employees and directors pursuant to
incentive compensation plans operated by the US Borrower
involving not more than 25% of the common stock of the US
Borrower) or warrants, where such sale is previously consented
to in writing by the Majority Banks or all of the Banks, as
applicable, in accordance (S)10.5.2, with then as soon as
practicable and in any event within thirty (30) days after the
sale of such new equity, the US Borrower shall prepay the US
Loans and Reimbursement Obligations in accordance with
(S)4.2.7 in an amount equal to one hundred percent (100%) of
the Net Cash Proceeds to the US Borrower or such Restricted
<PAGE>
-59-
Subsidiary of the US Borrower of such sale or issuance of new
equity.
(b) In the event that the Australian Borrower, GWIA
or any Restricted Subsidiary of GWIA shall after the Closing
Date sell or issue any shares of stock, options or warrants,
where such sale is previously consented to in writing by the
Majority Banks or all of the Banks, as applicable, in
accordance (S)10.5.2, then as soon as practicable and in any
event within thirty (30) days after the sale of such new
equity, the Australian Borrower shall prepay the Australian
Revolving Credit Loans in accordance with (S)4.2.7 in an
amount equal to one hundred percent (100%) of the Net Cash
Proceeds to the Australian Borrower, GWIA or such Restricted
Subsidiary of GWIA of such sale or issuance of new equity.
(c) In the event that the Canadian Borrower or any of
Canadian Guarantors shall after the Closing Date sell or issue
any shares of its stock, options or warrants, where such sale
is previously consented to in writing by the Majority Banks or
all of the Banks, as applicable, in accordance (S)10.5.2,
then as soon as practicable the Canadian Borrower shall elect
an option with regard to the application of such Net Cash
Proceeds of such sale or issuance of new equity in accordance
with (S)4.2.7.
(d) In the event that any shares of the stock,
options or warrants of the Mexican Borrower or any of the
Mexican Guarantors shall be sold or issued after the Closing
Date, whether by such Person or a stockholder of such Person,
where such sale is previously consented to in writing by the
Majority Banks or all of the Banks, as applicable, in
accordance (S)10.5.2, then as soon as practicable the Mexican
Borrower shall prepay the Mexican Loans in accordance with
(S)4.2.7. in an amount equal to 100% of the Net Cash Proceeds
of such sale or issuance of stock, options or warrants.
4.2.4. Mandatory Prepayments from Debt Offerings.
-----------------------------------------
(a) In the event that the US Borrower or any US
Restricted Subsidiary shall after the Closing Date incur any
Indebtedness for borrowed money not otherwise permitted under
(S)10.1 hereof where the incurrence of such Indebtedness is
previously consented to in writing by the Majority Banks, then
simultaneously with receipt by the US Borrower or such
Restricted Subsidiary of the Net Cash Proceeds of such debt
issuance, the US Borrower shall prepay the US Loans and
Reimbursement Obligations in accordance with (S)4.2.7 in an
amount equal to the Net Cash Proceeds of such debt issuance.
<PAGE>
-60-
(b) In the event that the Australian Borrower, GWIA
or any Restricted Subsidiary of GWIA shall after the Closing
Date incur any Indebtedness for borrowed money not otherwise
permitted under (S)10.1 hereof where the incurrence of such
Indebtedness is previously consented to in writing by the
Majority Banks, then simultaneously with receipt by the
Australian Borrower , GWIA or such Restricted Subsidiary of
GWIA of the Net Cash Proceeds of such debt issuance, the
Australian Borrower shall prepay the Australian Revolving
Credit Loans in accordance with (S)4.2.7 in an amount equal
to the Net Cash Proceeds of such debt issuance.
(c) In the event that the Canadian Borrower or any of
the Canadian Guarantors shall after the Closing Date incur any
Indebtedness for borrowed money not otherwise permitted under
(S)10.1 hereof where the incurrence of such Indebtedness is
previously consented to in writing by the Majority Banks, then
the Canadian Borrower shall elect an option with regard to the
application of such Net Cash Proceeds of such debt issuance in
accordance with (S)4.2.7.
(d) In the event that the Mexican Borrower, or any of
the Mexican Guarantors shall after the Closing Date incur any
Indebtedness for borrowed money not otherwise permitted under
(S)10.1 hereof where the incurrence of such Indebtedness is
previously consented to in writing by the Majority Banks, then
simultaneously with receipt by the Mexican Borrower or such
Mexican Guarantor of the Net Cash Proceeds of such debt
issuance, the Mexican Borrower shall prepay the Mexican Loans
in accordance with (S)4.2.7 in an amount equal to the Net
Cash Proceeds of such debt issuance.
4.2.5. Mandatory Repayment by Australian Borrower. Upon the
------------------------------------------
expiration of an Interest Period with respect to any Australian
Revolving Credit Loan, the Australian Borrower shall pay the
Outstanding principal of such Australian Revolving Credit Loan,
together with any and all accrued and unpaid interest thereon; provided
--------
that if Australian Borrower shall give the Australian Agent and the
Administrative Agent at least two (2) days written notice of such
election, the Australian Borrower may redraw the Outstanding principal
amount of such Australian Revolving Credit Loan without repaying such
Outstanding principal amount upon the expiration of the applicable
Interest Period; provided that no BBSW Rate Loan may be renewed as such
--------
when any Default or Event of Default has occurred and is continuing,
but if the Outstanding principal of such Australian Revolving Credit
Loan, together with any and all accrued and unpaid interest thereon is
not paid by the Australian Borrower on the expiration of the relevant
Interest Period, such Australian Revolving Credit Loan shall be
automatically renewed and converted to an Australian Base Rate Loan on
<PAGE>
-61-
the last day of the first Interest Period relating thereto ending
during the continuance of any Default or Event of Default of which
officers of the any of the Agents active on the Australian Borrower's
account have actual knowledge. In the event that the Australian
Borrower fails to provide any such notice with respect to the redrawing
of any BBSW Rate Loan as such, then, at the discretion of the
Australian Agent such BBSW Rate Loan shall be automatically redrawn for
90 days. The Australian Agent shall notify the Australian Banks and the
Administrative Agent promptly when any such automatic renewal
contemplated by this (S) 4.2.5 is scheduled to occur.
4.2.6. Mandatory Prepayment From Excess Cash Flow. For each
------------------------------------------
fiscal year ending on or after December 31, 2000, the Mexican Borrower
shall make a prepayment of principal on the Mexican Term Loan (or, if
the Mexican Term Loan shall have been repaid in full, the US Borrower
shall make a prepayment of principal on the US Term Loan) in an amount
equal to fifty percent (50%) of Consolidated Excess Cash Flow for such
fiscal year; provided that no such prepayment shall be required
-------- ----
hereunder if the Funded Debt to EBITDAR Ratio for such fiscal year is
less than 3.25 to 1.00 and no Default or Event of Default is continuing
at the time the prepayment is due. Any such prepayment shall be due
ninety (90) days after the end of each applicable fiscal year.
4.2.7. Application of Repayments.
-------------------------
(a) Prior to a Default or Event of Default, all
mandatory prepayments of the US Loans pursuant to this (S) 4.2
shall be applied first, to any Unpaid Reimbursement
-----
Obligations; second to the US Term Loan; third to the US
------ -----
Revolving Credit Loans; and fourth to provide to the
------
Administrative Agent cash collateral for Reimbursement
Obligations as contemplated by (S) 5.2(b) and (c). Each
payment of any Unpaid Reimbursement Obligations or prepayment
of US Loans shall be allocated among the US Banks, in
proportion, as nearly as practicable, to each Reimbursement
Obligation or (as the case may be) the respective unpaid
principal amount of each US Bank's Notes, with adjustments to
the extent practicable to equalize any prior payments or
repayments not exactly in proportion. In addition, the Total
US Commitment and the Total Commitment shall be permanently
reduced by the aggregate amount of all mandatory repayments
(other than prepayments made pursuant to (S) 4.2.1(a)). No
amount repaid by the US Borrower pursuant to this (S) 4.2 may
be reborrowed (other than with respect to payments made as a
result of the Locomotive Sale).
(b) Prior to a Default or Event of Default, all
mandatory prepayments of the Australian Revolving Credit Loans
shall be paid by the Australian Borrower to the Australian
Agent, for the respective accounts of the Australian Banks for
application to the
<PAGE>
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Australian Revolving Credit Loans. Such prepayment shall be
allocated among the Australian Banks, in proportion, as nearly
as practicable to the respective unpaid Outstanding principal
amount of each Australian Bank's Australian Revolving Credit
Loans, with adjustment to the extent practicable to equalize
any prior prepayments not exactly in proportion. The Total
Australian Commitment and the Total Commitment shall be
permanently reduced by the aggregate amount of all mandatory
prepayments (other than prepayments made pursuant to
(S)4.2.1(b)). No amount repaid by the Australian Borrower
pursuant to this (S)4.2 may be reborrowed (other than
prepayments made pursuant to (S)4.2.1(b)).
(c) Prior to a Default or Event of Default, unless
otherwise agreed to by the Majority US Term Banks, all
mandatory prepayments of the Term Loans shall be applied
against the scheduled installments of principal due on the
Term Loans in the inverse order of maturity.
(d) Prior to a Default or Event of Default, the
Canadian Borrower or the applicable Canadian Guarantor shall,
within ninety (90) days following the receipt of any Net Cash
Proceeds as set forth in (S)(S)4.2.2(c), 4.2.3(c) or 4.2.4(c),
elect to either (i) expend or commit such Net Cash Proceeds to
the replacement or acquisition of new assets to be used in the
business carried on by the Canadian Borrower (which assets
shall be subject to the Banks' perfected first priority
security interest or published first-ranking hypothec) or (ii)
invest such Net Cash Proceeds in Restricted Subsidiaries.
(e) Prior to a Default or Event of Default, all
mandatory prepayments of the Mexican Loans pursuant to this
(S)4.2 shall be applied first, to the Mexican Term Loan and
-----
second, to the Mexican Revolving Credit Loans. Each prepayment
------
of Mexican Loans shall be allocated among the US Banks, in
proportion, as nearly as practicable, to the respective unpaid
principal amount of each US Bank's Mexican Revolving Credit
Note or Mexican Term Note, with adjustments to the extent
practicable to equalize any prior payments or repayments not
exactly in proportion. In addition, the Total Mexican
Commitment and the Total Commitment shall be permanently
reduced by the aggregate amount of all mandatory repayments
(other than prepayments made pursuant to (S)4.2.1(c)). No
amount repaid by the Mexican Borrower pursuant to this (S)4.2
may be reborrowed.
(f) Upon the occurrence or continuation of a Default
or Event of Default, all mandatory prepayments shall be
distributed in accordance with (S)29.
<PAGE>
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4.2.8. Reduction of Commitments. To the extent any mandatory
------------------------
prepayments are required when the Outstanding Revolving Credit Loans
and Reimbursement Obligations are less than the amount of such required
repayment, the amount of the Commitments shall be reduced by the Dollar
Equivalent of the amount which would otherwise constitute a required
prepayment hereunder, but such reduction shall not reduce any fees
payable under the Fee Letters.
4.3. Optional Repayments of Loans.
----------------------------
(a) The US Borrower shall have the right, at its election, to
repay the outstanding amount of the US 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 US Loan that is a
Eurocurrency Rate Loan pursuant to this (S)4.3(a) may be made only on
the last day of the Interest Period relating thereto. The US Borrower
shall give the Administrative Agent, no later than 10:00 a.m., Boston
time, at least (i) one (1) Business Day prior written notice of any
proposed prepayment of a US Loan that is a Base Rate Loan pursuant to
this (S)4.3(a), (ii) two (2) Eurocurrency Business Days prior written
notice of any proposed prepayment of a US Loan that is a Eurocurrency
Rate Loan (other than Eurocurrency Rate Loans denominated in an
Optional Currency) pursuant to this (S)(S)4.3(a) and (iii) five (5)
Eurocurrency Business Days prior written notice of any proposed
prepayment of a US Loan denominated in an Optional Currency pursuant to
this (S)4.3(a), in each case specifying the proposed date of prepayment
of such US Loans and the principal amount to be paid. Each such partial
prepayment of the US Loans shall be in an integral multiple of $500,000
and shall be applied by the Administrative Agent, in the absence of
instruction by the US Borrower, first to the principal of Base Rate
Loans and then to the principal of Eurocurrency Rate Loans. Each
partial prepayment shall be allocated among the US Banks, in
proportion, as nearly as practicable, to the respective unpaid
principal amount of each US Bank's US Note being prepaid, with
adjustments to the extent practicable to equalize any prior repayments
not exactly in proportion. Any optional prepayments of the US Term Loan
shall be applied against the scheduled installments of principal due on
the US Term Loan in the inverse order of maturity, and the US Borrower
shall have no right to reborrow any amounts so prepaid.
(b) The Australian Borrower shall have the right, at its
election, to repay the outstanding amount of the Australian Revolving
Credit 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 Australian Revolving Credit Loans pursuant to
this (S)4.3(b) may be made only on the last day of the Interest Period
relating thereto. The Australian Borrower shall give the Australian
Agent, no later than 10:00 a.m., Sydney time, at least two (2)
Australian Business Days' prior written notice of any proposed
repayment of Australian Revolving Credit Loans pursuant to this
(S)4.3(b), and shall specify the proposed date of
<PAGE>
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prepayment of such Australian Revolving Credit Loans and the principal
amount to be prepaid. Each such partial prepayment of the Australian
Revolving Credit Loans shall be in an integral multiple of
Aus.$500,000. Each partial prepayment shall be allocated among the
Australian Banks, in proportion, as nearly as practicable, to the
respective unpaid Outstanding principal amount of the applicable
Australian Revolving Credit Loan Account of such Bank, with adjustments
to the extent practicable to equalize any prior repayments not exactly
in proportion.
(c) The Canadian Borrower shall have the right at any time to
prepay the Canadian Term Loan on or before the Maturity Date, as a
whole, or in part, upon not less than five (5) US Business Days prior
written notice to the Administrative Agent, without premium or penalty,
provided that (i) each partial prepayment shall be in an integral
--------
multiple of the Canadian Dollar Equivalent of Cdn. $500,000 thereof,
(ii) no portion of the Canadian Term Loan bearing interest at the
Canadian Eurodollar Rate may be prepaid pursuant to this (S)(S)4.3(c)
except on the last day of the Interest Period relating thereto, and
(iii) each partial prepayment shall be allocated among the US Term
Banks in accordance with such US Term Banks' Canadian Term Loan
Percentage. Any prepayment of principal of the Canadian Term Loan shall
include all interest accrued to the date of prepayment and shall be
applied against the scheduled installments of principal due on the
Canadian Term Loan in the inverse order of maturity. No amount repaid
with respect to the Canadian Term Loan may be reborrowed.
(d) The Mexican Borrower shall have the right, at its
election, to repay the outstanding amount of the Mexican 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 Mexican
Loan that is a Eurocurrency Rate Loan pursuant to this (S)4.3(d) may
be made only on the last day of the Interest Period relating thereto.
The Mexican Borrower shall give the Administrative Agent, no later than
10:00 a.m., Boston time, at least one (1) Mexican Business Day prior
written notice of any proposed prepayment of a Mexican Loan that is a
Base Rate Loan pursuant to this (S)4.3(d), and two (2) Eurocurrency
Business Days prior written notice of any proposed prepayment of a
Mexican Loan that is a Eurocurrency Rate Loan pursuant to this
(S)4.3(d), in each case specifying the proposed date of prepayment of
such Mexican Loans and the principal amount to be paid. Each such
partial prepayment of the Mexican Loans shall be in an integral
multiple of $500,000 and shall be applied by the Administrative Agent,
in the absence of instruction by the Mexican Borrower, first to the
principal of Base Rate Loans and then to the principal of Eurocurrency
Rate Loans. Each partial prepayment shall be allocated among the US
Banks, in proportion, as nearly as practicable, to the respective
unpaid principal amount of each US Bank's Mexican Revolving Credit Note
or Mexican Term Note, as the case may be, with adjustments to the
extent practicable to equalize any prior repayments not exactly in
proportion. Any optional prepayments of the
<PAGE>
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Mexican Term Loan shall be applied against the scheduled installments
of principal due on the Mexican Term Loan in the inverse order of
maturity, and the Mexican Borrower shall have no right to reborrow any
amounts so prepaid.
5. LETTERS OF CREDIT.
-----------------
5.1. Letter of Credit Commitments.
----------------------------
5.1.1. Commitment to Issue Letters of Credit. Subject to the
-------------------------------------
terms and conditions hereof and the execution and delivery by the US
Borrower of a letter of credit application on the Issuing Bank's
customary form (a "Letter of Credit Application"), the Issuing Bank on
----------------------------
behalf of the US Revolving Credit Banks and in reliance upon the
agreement of the US Revolving Credit Banks set forth in (S)5.1.4 and
upon the representations and warranties of the US Borrower contained
herein, agrees, in its individual capacity, to issue, extend and renew
for the account of the US Borrower one or more standby or documentary
letters of credit (individually, a "Letter of Credit"), in such form as
----------------
may be requested from time to time by the US Borrower and agreed to by
the Issuing Bank; provided, however, that, after giving effect to such
-------- -------
request, (a) the outstanding Letter of Credit Obligations does not
exceed $10,000,000, (b) the sum of (i) the outstanding Letter of Credit
Obligations and (ii) the amount of all US Revolving Credit Loans
outstanding shall not exceed the Total US Commitment; and (c) the sum
of (i) the Dollar Equivalent of the outstanding Letter of Credit
Obligations and (ii) the amount of all Revolving Credit Loans
outstanding shall not exceed the Total Commitment. Notwithstanding the
foregoing, the Issuing Bank shall have no obligation to issue any
Letter of Credit to support or secure any Indebtedness of the US
Borrower or any of its US Restricted Subsidiaries to the extent that
such Indebtedness was incurred prior to the proposed issuance date of
such Letter of Credit, unless in any such case the US Borrower
demonstrates to the satisfaction of the Issuing Bank that (x) such
prior incurred Indebtedness was then fully secured by a prior perfected
and unavoidable security interest in collateral provided by the US
Borrower or such Restricted Subsidiary to the proposed beneficiary of
such Letter of Credit or (y) such prior incurred Indebtedness was then
secured or supported by a letter of credit issued for the account of
the US Borrower or such Restricted Subsidiary and the reimbursement
obligation with respect to such letter of credit was fully secured by a
prior perfected and unavoidable security interest in collateral
provided to the issuer of such letter of credit by the US Borrower or
such Restricted Subsidiary. On the Closing Date the Existing Letters of
Credit shall converted into Letters of Credit under this Credit
Agreement.
5.1.2. Letter of Credit Applications. Each Letter of Credit
-----------------------------
Application shall be completed to the satisfaction of the Issuing Bank.
In the event that any provision of any Letter of Credit Application
shall be inconsistent with any provision of this Credit Agreement, then
the
<PAGE>
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provisions of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
5.1.3. Terms of Letters of Credit. Each Letter of Credit
--------------------------
issued, extended or renewed hereunder shall, among other things, (a)
provide for the payment of sight drafts for honor thereunder when
presented in accordance with the terms thereof and when accompanied by
the documents described therein, (b) subject to clause (c) hereof,
shall have a term of not more than one (1) year from the date of
issuance, extension or renewal thereof and (c) have an expiry date no
later than the date which is fourteen (14) days (or, if the Letter of
Credit is confirmed by a confirmer or otherwise provides for one or
more nominated persons, forty-five (45) days) prior to the Maturity
Date. Each Letter of Credit so issued, extended or renewed shall be
subject to the Uniform Customs or in the case of a standby Letter of
Credit, either the Uniform Customs or the International Standby
Practices.
5.1.4. Reimbursement Obligations of US Revolving Credit Banks.
------------------------------------------------------
Each US Revolving Credit Bank 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 Bank's US Commitment Percentage, to reimburse the
Issuing Bank on demand for the amount of each draft paid by the Issuing
Bank under each Letter of Credit to the extent that such amount is not
reimbursed by the US Borrower pursuant to (S)5.2 (such agreement for a
US Revolving Credit Bank being called herein the "Letter of Credit
------ -- ------
Participation" of such Bank). Without limiting the foregoing, each US
-------------
Bank's obligation to purchase Letter of Credit Participations shall be
absolute and unconditional and shall not be affected by any
circumstance, including (a) any set-off, counterclaim, recoupment,
defense or other right which such Bank may have against the
Administrative Agent, the Issuing Bank, the US Borrower or any other
Person for any reason whatsoever; (b) the occurrence and continuation
of any Default or Event of Default; (c) any adverse change in the
condition (financial or otherwise) of the US Borrower, any of the US
Restricted Subsidiaries or any US Revolving Credit Bank; (d) any breach
of any of the Loan Documents by the US Borrower, any of the US
Restricted Subsidiaries or any US Revolving Credit Bank; or (e) any
other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
5.1.5. Participations of US Revolving Credit Banks. Each such
-------------------------------------------
payment made by a US Revolving Credit Bank shall be treated as the
purchase by such Bank of a participating interest in the US Borrower's
Reimbursement Obligation under (S)5.2 in an amount equal to such
payment. Each US Revolving Credit Bank shall share in accordance with
its participating interest in any interest which accrues pursuant to
(S)5.2.
<PAGE>
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5.2. Reimbursement Obligation of the US Borrower. In order to induce
-------------------------------------------
the Issuing Bank to issue, extend and renew each Letter of Credit and the US
Revolving Credit Banks to participate therein, the US Borrower hereby agrees to
reimburse or pay to the Administrative Agent, for the account of the Issuing
Bank or (as the case may be) the US Revolving Credit Banks, with respect to each
Letter of Credit issued, extended or renewed by the Issuing Bank hereunder:
(a) except as otherwise expressly provided in (S)5.2(b) and (c),
on each date that any draft presented under such Letter of Credit is
honored by the Administrative Agent, or the Administrative Agent
otherwise makes a payment with respect thereto, (i) the amount paid by
the Administrative Agent under or with respect to such Letter of
Credit, and (ii) the amount of any taxes, fees, charges or other costs
and expenses whatsoever incurred by the Administrative Agent or any US
Revolving Credit Bank in connection with any payment made by the
Administrative Agent or any US Revolving Credit Bank under, or with
respect to, such Letter of Credit;
(b) upon the reduction (but not termination) of the Total US
Commitment to an amount less than the Maximum Drawing Amount, an amount
equal to such difference, which amount shall be held by the
Administrative Agent for the benefit of the US Revolving Credit Banks
and the Issuing Bank as cash collateral for all Reimbursement
Obligations; and
(c) upon the termination of the Total US Commitment, or the
acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with (S)14, an amount equal to the
then Maximum Drawing Amount on all Letters of Credit, which amount
shall be held by the Administrative Agent for the benefit of the US
Revolving Credit Banks and the Administrative Agent as cash collateral
for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Head Office in immediately available funds. Interest on
any and all amounts remaining unpaid by the US Borrower under this (S)5.2 at
any time from the date such amounts become due and payable (whether as stated in
this (S)5.2, by acceleration or otherwise) until payment in full (whether
before or after judgment) shall be payable to the Administrative Agent on demand
at the rate specified in (S)6.10 for overdue principal on the Loans.
5.3. Letter of Credit Payments. If any draft shall be presented or
-------------------------
other demand for payment shall be made under any Letter of Credit, the Issuing
Bank shall notify the US Borrower of the date and amount of the draft presented
or demand for payment and of the date and time when it expects to pay such draft
or honor such demand for payment. If the US Borrower fails to reimburse the
Issuing Bank as provided in (S)5.2 on or before the date that such draft is
paid or other payment is made by the Issuing Bank, the Issuing Bank
<PAGE>
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shall promptly thereafter notify the US Revolving Credit Banks of the amount of
any such Unpaid Reimbursement Obligation and shall specify such amount required
from each of the US Revolving Credit Banks. No later than 3:00 p.m. (Boston
time) on the US Business Day next following the receipt of such notice, each US
Bank shall make available to the Administrative Agent, at its Head Office, in
immediately available funds, such Bank's US Commitment Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to (a) the average,
computed for the period referred to in clause (iii) below, of the Federal Funds
Effective Rate, times (b) the amount equal to such Bank's US Commitment
-----
Percentage of such Unpaid Reimbursement Obligation, times (c) a fraction, the
-----
numerator of which is the number of days that elapse from and including the date
the Issuing Bank paid the draft presented for honor or otherwise made payment to
the date on which such Bank's US Commitment Percentage of such Unpaid
Reimbursement Obligation shall become immediately available to the
Administrative Agent, and the denominator of which is 360. The responsibility of
the Issuing Bank to the US Borrower and the US Revolving Credit Banks shall be
only to determine that the documents (including each draft) delivered under each
Letter of Credit in connection with such presentment shall be in conformity in
all material respects with such Letter of Credit. From and after such purchase
of the applicable Letter of Credit Participations, such Unpaid Reimbursement
Obligations shall be deemed to have been converted into Base Rate Loans made by
the US Revolving Credit Banks.
5.4. Obligations Absolute. The US Borrower's obligations under this
--------------------
(S)5 shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the US Borrower may have or have had against the Issuing Bank, the
Administrative Agent, any US Revolving Credit Bank or any beneficiary of a
Letter of Credit or any other Person. The US Borrower further agrees with the
Issuing Bank and the US Revolving Credit Banks that the Issuing Bank and the US
Revolving Credit Banks shall not be responsible for, and the US Borrower's
Reimbursement Obligations under (S)5.2 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among the US Borrower,
the beneficiary of any Letter of Credit or any financing institution or other
party to which any Letter of Credit may be transferred or any claims or defenses
whatsoever of the US Borrower against the beneficiary of any Letter of Credit or
any such transferee. The Issuing Bank and the US Revolving Credit Banks shall
not be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit.
5.5. Reliance by Issuer. To the extent not inconsistent with (S)5.4,
------------------
the Issuing Bank shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message,
<PAGE>
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statement, order or other document believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts selected by the Issuing Bank. The Issuing Bank shall be fully justified
in failing or refusing to take any action under this Credit Agreement unless it
shall first have received such advice or concurrence of the Majority Banks as it
reasonably deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the US Revolving Credit Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Issuing Bank shall in all cases be fully protected in
acting, or in refraining from acting, under this Credit Agreement in accordance
with a request of the US Revolving Credit Banks, holding 51% of the Total US
Commitment and such request and any action taken or failure to act pursuant
thereto shall be binding upon the US Revolving Credit Banks and all future
holders of the US Revolving Credit Notes or of a Letter of Credit Participation.
5.6. Letter of Credit Fee. The US Borrower shall, on the date of
--------------------
issuance or any extension or renewal of any Letter of Credit and at such other
time or times as such charges are customarily made by the Issuing Bank, 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 face amount of
such Letter of Credit multiplied by the Applicable Margin with respect to
---------- --
Letters of Credit. Such Letter of Credit Fee shall be allocated pro rata
--- ----
(according to the applicable US Commitment Percentages) to each US Revolving
Credit Bank. In addition, the US Borrower shall pay to the Administrative Agent,
for its own account or the account of the Issuing Bank, (a) a fee at a rate per
annum equal to the Maximum Drawing Amount multiplied by one-eighth of one
---------- --
percent (0.125%), such fee to be payable quarterly in arrears on the last US
Business Day of each calendar quarter for such calendar quarter then ending and
(b) with respect to documentary letters of credit, standard issuance, extension,
renewal, processing, negotiating, amendment and administration fees, as
determined in accordance with the Issuing Bank's or the Administrative Agent's
customary fees and charges for similar facilities.
6. CERTAIN GENERAL PROVISIONS.
--------------------------
6.1. Fees.
----
(a) The Borrowers jointly and severally, in accordance with
the provisions set forth in ss.6.14, agree to pay from time to time to
the Agents, each for its own account, such fees (collectively, the
"Agents' Fees") as are set forth in the Agents' Fee Letters.
------ ----
(b) The Borrowers jointly and severally, in accordance with
the provisions set forth in (S)(S)6.14, agree to pay to the
Administrative Agent on the Closing Date the closing fees set forth in
the Fee Letter.
<PAGE>
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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 US Borrower with the Administrative Agent for all (i)
interest payments when due as provided in (S)(S)2.7 and 3.4
with respect to the applicable Notes or otherwise due
hereunder, (ii) US Commitment Fees when due as provided in
(S)2.2, and (iii) Letter of Credit Fees when due as provided
in (S)5.6. The failure of the Administrative Agent to debit
such account as provided herein with respect to any such
payments shall not constitute a waiver of any payment due
hereunder. All payments of principal, Reimbursement
Obligations and any other amounts due hereunder or under any
of the other Loan Documents in respect to the Notes shall be
made to the Administrative Agent, for the respective accounts
of the applicable US Banks, the Issuing Bank, as applicable,
and the Administrative Agent, at the Administrative Agent's
Head Office or at such other location in the Boston,
Massachusetts, area that the Administrative Agent may from
time to time designate, in each case in immediately available
funds.
(b) The Administrative Agent shall debit an account
of the Canadian Borrower with the Administrative Agent for all
interest payments when due as provided in (S)3.4 with respect
to the Canadian Term Notes or otherwise due hereunder. The
failure of the Administrative Agent to debit such account as
provided herein with respect to any such payments shall not
constitute a waiver of any payment due hereunder. All payments
of principal and any other amounts due hereunder or under any
of the other Loan Documents in respect to the Canadian Term
Notes shall be made to the Administrative Agent, for the
respective accounts of the applicable US Term Banks and the
Administrative Agent, at the Administrative Agent's Head
Office or at such other location in the Boston, Massachusetts,
area that the Administrative Agent may from time to time
designate, in each case in immediately available funds.
(c) The Australian Agent shall debit an account of the
Australian Borrower with the Australian Agent for all (i)
interest payments when due as provided in (S)2.7 with respect
to the Australian Revolving Credit Loans or otherwise due
hereunder and (ii) Australian Commitment Fees when due as
provided in (S)2.2. The failure of the Australian 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 Australian Revolving Credit Loans shall be made to the
Australian Agent no later than
<PAGE>
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11:00 a.m. Sydney time, for the respective accounts of the
Australian Banks and the Australian Agent, at the Australian
Agent's Office or at such other location that the Australian
Agent may from time to time designate, in each case in
immediately available funds.
(d) The Administrative Agent shall debit an account
of the Mexican Borrower with the Administrative Agent for all
(i) interest payments when due as provided in (S)(S)2.7 and
3.4 with respect to the applicable Mexican Loans or otherwise
due hereunder, and (ii) Mexican Commitment Fees when due as
provided in (S)2.2. The failure of the Administrative Agent to
debit such account as provided herein with respect to any such
payments shall not constitute a waiver of any payment due
hereunder. All payments of principal and any other amounts due
hereunder or under any of the other Loan Documents in respect
to the Mexican Loans shall be made to the Administrative
Agent, for the respective accounts of the applicable US Banks
and the Administrative Agent, at the Administrative Agent's
Mexican Lending Office or at such other location that the
Administrative Agent may from time to time designate, in each
case in immediately available funds.
(e) The Mexican Borrower agrees that,
notwithstanding any Currency Restriction or the delivery of
any other form of payment or form of assurance of payment to
be delivered in respect of the Obligations and this Credit
Agreement, any and all payments on the Mexican Loans shall be
made in Dollars. In the event of any such Currency Restriction
and notwithstanding the delivery of any other form of payment
or form of assurance of payment, delivered in respect of this
Credit Agreement, the Mexican Borrower shall (at its own
expense) obtain such Dollars through (i) direct payment from
the United States by the US Borrower, (ii) if legal and
customary, the sale of any governmental or private bond or
tradable security issued in Dollars in Mexico, or (iii)
failing the mechanism described in (ii) above, any other legal
and customary mechanism for the acquisition of Dollars in any
exchange market. In the event such transactions to obtain
Dollars must be undertaken with respect to the payment of any
amounts due hereunder, interest shall continue to accrue at
the interest rate applicable at the time to overdue payments
pursuant to (S)6.10 hereof.
(f) The Mexican Borrower expressly acknowledges that
the Mexican Loans hereunder shall be repaid in Dollars and
that, in view of the foregoing, the parties hereto expressly
agree, as an essential condition to making any Mexican Loans
hereunder, that the Mexican Borrower shall and hereby does
irrevocably promise to repay the Mexican Loans, the interest
accrued thereon and any
<PAGE>
-72-
other Obligations of the Mexican Borrower exclusively in
Dollars, expressly waiving any right that the Mexican Borrower
may have to cancel or to pay the Mexican Borrower's
Obligations hereunder in any other currency, instrument or
other form of payment or form of assurance of payment. The
Mexican Borrower hereby assumes the risk and will be liable in
respect of any future circumstance (including Currency
Restrictions, acts of God or force majeure) which may affect
the exchange markets or mechanisms available for the purchase
of Dollars or its ability to make payments in Dollars in such
a way as to prohibit, hinder or make more onerous its ability
to obtain Dollars in the amount payable hereunder, and
promises, in any such event, to resort to any legal local or
foreign exchange mechanism enabling the Mexican Borrower to
pay its Obligations under this Credit Agreement and the other
Loan Documents with Dollars or to rely on the US Borrowers to
make payments of the Obligations of the Mexican Borrower in
Dollars. The Mexican Borrower waives, therefore, to the extent
permitted by law, the right to invoke any defense of payment
impossibility or any other like defense and expressly
acknowledges that its Obligations hereunder shall remain
effective and enforceable until the Agent and the Banks
receive the exact amount of Dollars owed to them by the
Mexican Borrower hereunder.
6.2.2. No Offset, Etc.
--------------
(a) All payments by the Borrowers hereunder and under
any of the other Loan Documents shall be made without setoff
or counterclaim and free and clear of and without deduction
for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by
any jurisdiction or any political subdivision thereof or
taxing or other authority therein unless any Borrower is
compelled by law to make such deduction or withholding. If any
such obligation is imposed upon a Borrower with respect to any
amount payable by it hereunder or under any of the other Loan
Documents, such Borrower will pay to the applicable Agent, for
the account of the applicable Banks, the Issuing Bank or (as
the case may be) the applicable Agent, on the date on which
such amount is due and payable hereunder or under such other
Loan Document, such additional amount in Dollars, Canadian
Dollars or Australian Dollars (as applicable) as shall be
necessary to enable the applicable Banks or Agent to receive
the same net amount which the applicable Banks or Agent would
have received on such due date had no such obligation been
imposed upon such Borrower. Such Borrower will deliver
promptly to the applicable Agent certificates or other valid
vouchers for all taxes or other charges deducted from or paid
with
<PAGE>
-73-
respect to payments made by such Borrower hereunder or under
such other Loan Document.
(b) On or before the date it becomes a party to this
Credit Agreement and from time to time thereafter upon any
change in status rendering any certificate or document
previously delivered pursuant to this (S)6.2.2 invalid or
inaccurate, each Bank that is organized under the laws of a
jurisdiction outside the United States which makes US Loans
shall (if legally able to do so) deliver to the US Borrower
such certificates, documents or other evidence, as required by
the Code or Treasury Regulations issued pursuant thereto,
including Internal Revenue Service Form 1001 or Form 4224 or
any applicable successor form or other applicable form
pertaining to any such Bank and any other certificate or
statement of exemption required by Treasury Regulation Section
1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version
thereof or subsequent version thereto, properly completed and
duly executed by such Bank establishing that such payment is
(a) not subject to United States Federal withholding tax under
the Code because such payment is effectively connected with
conduct by such Bank of a trade or business in the United
States or (b) totally exempt from United States Federal
withholding tax or, if due to a change in law occurring after
the date such Bank became a party hereto, subject to a reduced
rate of such tax under a provision of an applicable tax
treaty. The US Borrower shall not be required to pay any
additional amounts to any Bank pursuant to this (S)6.2.2 to
the extent that the obligation to pay such additional amounts
would not have arisen but for a failure by such Bank to comply
with the provisions of the preceding sentence.
6.2.3. Currency Matters.
----------------
6.2.3.1. Currency of Account.
-------------------
(a) Dollars are the currency of account and payment
for each and every sum at any time due from the US Borrower
hereunder, as applicable; provided that:
--------
(i) except as expressly provided in this Credit
Agreement, each repayment of a Loan any part thereof
shall be made in the currency in which such Loan is
denominated at the time of that repayment;
(ii) each payment of interest shall be made in
the currency in which such principal or other sum in
respect of which such interest is payable, is
denominated;
<PAGE>
-74-
(iii) each payment of Letter of Credit Fees and
the commitment fees shall be in Dollars;
(iv) each payment in respect of costs,
expenses and indemnities shall be made in the
currency in which the same were incurred; and
(v) any amount expressed to be payable in a
currency other than Dollars shall be paid in that
other currency.
(b) Australian Dollars are the currency of account
and payment for each and every sum at any time due from the
Australian Borrower hereunder; provided that:
--------
(i) each payment in respect of costs,
expenses and indemnities shall be made in the
currency in which the same were incurred; and
(ii) any amount expressed to be payable in a
currency other than Australian Dollars shall be paid
in that other currency.
(c) Canadian Dollars are the currency of account and
payment for each and every sum at any time due from the
Canadian Borrower hereunder; provided that:
(i) each payment in respect of costs,
expenses and indemnities shall be made in the
currency in which the same were incurred; and
(ii) any amount expressed to be payable in a
currency other than Canadian Dollars shall be paid in
that other currency.
(d) Dollars are the currency of account and payment
for each and every sum at any time due from the Mexican
Borrower hereunder; provided that:
(i) each payment in respect of costs,
expenses and indemnities shall be made in the
currency in which the same were incurred; and
(ii) any amount expressed to be payable in a
currency other than Dollars shall be paid in that
other currency.
(e) No payment to any of the Agents, the Issuing
Bank or any Bank (whether under any judgment or court order or
otherwise) shall discharge the obligation or liability in
respect of
<PAGE>
-75-
which it was made unless and until such Agent, the Issuing
Bank or such Bank 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, the Issuing Bank or such Bank, as the case may be, with
respect to the amount of the shortfall.
(f) If, for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one
currency (the "first currency") into any other currency (the
"second currency") the conversion shall be made at the spot
rate of exchange of the applicable Agent (as conclusively
determined by such Agent) on the US, Australian, Canadian or
Mexican Business Day (as the case may be) preceding the day on
which the final judgment is given. If, however, on the US,
Australian, Canadian or Mexican Business Day (as the case may
be) following receipt by the applicable Agent in the second
currency of any sum adjudged to be due hereunder (or any
proportion thereof) such Agent purchases the first currency
with the amount of the second currency so received and the
first currency so purchased falls short of the sum originally
due hereunder in the first currency (or the same proportion
thereof) the applicable Borrower shall, as a separate
obligation and notwithstanding any judgment, pay to such Agent
in the first currency an amount equal to such shortfall.
6.2.3.2. Currency Fluctuations.
---------------------
(a) Not later than 1:00 p.m. (Boston time) on the
last US Business Day of each calendar month (the "Calculation
-----------
Date"), the Administrative Agent shall determine the Dollar
----
Equivalent as of such date of the Outstanding Revolving Credit
Loans and Letter of Credit Obligations. The Dollar Equivalent
so determined shall become effective on the first US Business
Day immediately following such determination (a "Reset Date")
----------
and shall remain effective until the next succeeding Reset
Date.
(b) If, on any Reset Date and on the Maturity Date,
the Dollar Equivalent of all Outstanding Revolving Credit
Loans and Letter of Credit Obligations exceeds the Total
Commitment by more than $100,000, then (i) the Administrative
Agent shall give notice thereof to the Borrowers and the Banks
and (ii) within three (3) US Business Days thereafter, the
applicable Borrowers shall repay or prepay such Revolving
Credit Loans in accordance with this Credit Agreement in an
aggregate principal amount such that, after giving effect
thereto, the Dollar Equivalent of the aggregate
<PAGE>
-76-
outstanding amount of all Revolving Credit Loans and Letter of
Credit Obligations no longer exceeds the Total Commitment.
(c) Without limiting subsection (S)6.2.3.2(b), if, on any
day prior to the Maturity Date, the Dollar Equivalent of all
Outstanding Revolving Credit Loans and Letter of Credit
Obligations exceeds the Total Commitment by five percent (5%) or
more, then (i) the Administrative Agent shall give notice thereof
to the Borrowers and the Banks and (ii) within three (3) US
Business Days thereafter, the applicable Borrowers shall repay or
prepay the Revolving Credit Loans in accordance with this Credit
Agreement in an aggregate principal amount such that, after
giving effect thereto, the Dollar Equivalent of the aggregate
outstanding amount of all Revolving Credit Loans and Letter of
Credit Obligations no longer exceeds the Total Commitment.
Nothing set forth in this (S)6.2.3.2 shall be construed to
require the Administrative Agent to calculate daily compliance
under this (S)6.2.3.2 unless expressly requested to do so by a
Bank.
(d) If on any Reset Date, the Dollar Equivalent of the
aggregate Outstanding Letter of Credit Obligations exceeds the
Letter of Credit sublimit set forth in (S)5.1.1 by more than five
percent (5%), then the US Borrower shall immediately upon demand
provide cash collateral to the Administrative Agent such that,
after giving effect thereto, the Dollar Equivalent of the
aggregate Outstanding Letter of Credit Obligations no longer
exceeds the Letter of Credit sublimit set forth in (S)5.1.1.
(e) If on any Reset Date, the Dollar Equivalent of the
aggregate Outstanding Australian Revolving Credit Loans exceeds
the Total Australian Commitment by more than five percent (5%),
then the Australian Borrower shall immediately upon demand
provide cash collateral to the Australian Agent such that, after
giving effect thereto, the Dollar Equivalent of the aggregate
Outstanding Australian Revolving Credit Loans no longer exceed
the Total Australian Commitment.
6.3. Computations. All computations of interest on Eurocurrency Rate
------------
Loans, Canadian Eurodollar Rate Loans and of Commitment Fees, Letter of Credit
Fees or other fees shall, unless otherwise expressly provided herein, be based
on a 360-day year and paid for the actual number of days elapsed. All
computations of interest with respect to Base Rate Loans, BBSW Rate Loans,
Australian Base Rate Loans and CDOR Rate Loans shall be based on a 365-day year,
and paid for the actual number of days elapsed. Except as otherwise provided in
the definition of the term "Interest Period" with respect to Eurocurrency Rate
Loans, BBSW Rate Loans and Canadian Eurodollar Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes due on a day that is
not a US, Australian, Canadian or Mexican Business Day (as the case may be) the
due date for such payment
<PAGE>
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shall be extended to the next succeeding US, Australian, Canadian or Mexican
Business Day (as the case may be) and interest shall accrue during such
extension. The outstanding amount of the Loans as reflected on the applicable
Note Records or Australian Revolving Credit Loan Accounts, Mexican Revolving
Credit Notes or Mexican Term Notes from time to time shall be considered correct
and binding on the applicable Borrower unless within five (5) US, Australian,
Canadian or Mexican Business Days (as the case may be) after receipt of any
notice by the applicable Agent or Bank of such outstanding amount, the
applicable Agent or such Bank shall notify the applicable Borrower to the
contrary. With respect to the Canadian Term Loan, whenever interest is payable
hereunder on the basis of a year of 365 or 360 days, for the purposes of the
Interest Act (Canada), the yearly rate of interest which is equivalent to the
rate payable hereunder is the rate payable hereunder multiplied by the actual
number of days in the year and divided by 365 or 360, as applicable. All
interest will be calculated using the nominal rate method and not the effective
rate method and the deemed reinvestment principle shall not apply to such
calculations.
6.4. Inability to Determine Eurocurrency Rate or Canadian Eurodollar
---------------------------------------------------------------
Rate. In the event, prior to the commencement of any Interest Period relating to
- ----
any Eurocurrency Rate Loan or Canadian Eurodollar Loan (as the case may be), the
Administrative Agent shall determine that adequate and reasonable methods do not
exist for ascertaining the Eurocurrency Rate or Canadian Eurodollar Rate (as the
case may be) that would otherwise determine the rate of interest to be
applicable to any such Loan during any Interest Period, the Administrative Agent
shall forthwith give notice of such determination (which shall be conclusive and
binding on the US Borrower, the Canadian Borrower, the Mexican Borrower and the
US Banks) to the US Borrower, the Canadian Borrower or the Mexican Borrower (as
the case may be) and the US Banks. In such event (a) any Loan Request or
Conversion Request with respect to Eurocurrency Rate Loans shall be
automatically withdrawn and, in the case of Revolving Credit Loans denominated
in Dollars, shall be deemed a request for Base Rate Loans denominated in Dollars
and, in the case of any Eurocurrency Rate Loan denominated in an Optional
Currency, shall be withdrawn, (b) each Eurocurrency Rate Loan will
automatically, on the last day of the then current Interest Period relating
thereto, become a Base Rate Loan and each Eurocurrency Rate Loan denominated in
any Optional Currency will be required to be repaid on the last day of the then
current Interest Period relating thereto, (c) each Canadian Eurodollar Rate Loan
will automatically, on the last day of the then current Interest Period relating
thereto, become a CDOR Rate Loan, and (d) the obligations of the US Banks to
make Eurocurrency Rate Loans or Canadian Eurodollar Rate Loans (as the case may
be) shall be suspended until the Administrative Agent determines that the
circumstances giving rise to such suspension no longer exists, whereupon the
Administrative Agent shall so notify the US Borrower, the Canadian Borrower or
the Mexican Borrower (as the case may be) and the US Banks.
<PAGE>
-78-
6.5. Illegality.
----------
(a) Notwithstanding any other provisions herein, if any present or
future law, regulation, treaty or directive or the interpretation or
application thereof shall make it unlawful for any US Bank to make or
maintain Eurocurrency Rate Loans or Canadian Eurodollar Rate Loans, such
Bank shall forthwith give notice of such circumstances to the US Borrower,
the Canadian Borrower, the Mexican Borrower and the other US Banks and
thereupon (i) the commitment of such Bank to make Eurocurrency Rate Loans
or Canadian Eurodollar Rate Loans or convert Base Rate Loans to
Eurocurrency Rate Loans shall forthwith be suspended and (ii) such Bank's
then outstanding Eurocurrency Rate Loans or Canadian Eurodollar Rate Loans,
if any, shall (a) if comprising Eurocurrency Rate Loans denominated in
Dollars, be converted automatically to Base Rate Loans on the last day of
each Interest Period applicable to such Eurocurrency Rate Loans or within
such earlier period as may be required by law, (b) if comprising
Eurocurrency Rate Loans denominated in an Optional Currency, be immediately
repaid, and (c) if comprising Canadian Eurodollar Rate Loans, be converted
automatically to CDOR Rate Loans. Each of the US Borrower, the Canadian
Borrower and the Mexican Borrower, as the case may be, hereby agrees
promptly to pay the Administrative Agent for the account of such Bank, upon
demand by such Bank, any additional amounts necessary to compensate such
Bank for any costs incurred by such Bank in making any conversion in
accordance with this (S)6.5(a), including any interest or fees payable by
such Bank to Banks of funds obtained by it in order to make or maintain its
Eurocurrency Rate Loans or its Canadian Eurodollar Rate Loans (as the case
may be) hereunder.
(b) Notwithstanding any other provisions herein, if any present or
future law, regulation, treaty or directive or the interpretation or
application thereof shall make it unlawful for any Australian Bank to make
or maintain BBSW Rate Loans, such Bank shall forthwith give notice of such
circumstances to the Australian Borrower and the other Australian Banks and
thereupon (i) the commitment of such Bank to make BBSW Rate Loans shall
forthwith be suspended and (ii) such Bank's then outstanding BBSW Rate
Loans, if any, shall be converted automatically to Australian Base Rate
Loans on the last day of each Interest Period applicable to such BBSW Rate
Loans or within such earlier period as may be required by law. The
Australian Borrower hereby agrees promptly to pay the Australian Agent for
the account of such Bank, upon demand by such Bank, any additional amounts
necessary to compensate such Bank for any costs incurred by such Bank in
making any conversion in accordance with this (S)6.5(b), including any
interest or fees payable by such Bank to Banks of funds obtained by it in
order to make or maintain its BBSW Rate Loans hereunder.
6.6. Additional Costs, Etc. If any present or future applicable law, which
----------------------
expression, as used herein, includes statutes, rules and regulations
<PAGE>
-79-
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank, the Issuing Bank or any of the Agents by any
central bank or other fiscal, monetary or other authority (whether or not having
the force of law), shall:
(a) subject any Bank, the Issuing Bank or any of the Agents to any
tax, levy, impost, duty, charge, fee, deduction or withholding of any
nature with respect to this Credit Agreement (including, without
limitation, taxes or other charges imposed as a result of such Bank's non-
resident status), the other Loan Documents, any Letters of Credit, such
Bank's Commitment or the Loans (other than taxes based upon or measured by
the income or profits of such Bank, the Issuing Bank or such Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or
the interest on any Loans or any other amounts payable to any Bank, the
Issuing Bank or any Agent under this Credit Agreement or any of the other
Loan Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, prudential assessment, liquidity, capital adequacy or
other similar requirements (whether or not having the force of law) against
assets held by, or deposits in or for the account of, or loans by, or
letters of credit issued by, or commitments of an office of any Bank or the
Issuing Bank, or
(d) impose on any Bank, the Issuing Bank or any of the Agents any
other conditions or requirements with respect to this Credit Agreement, the
other Loan Documents, any Letters of Credit, the Loans, such Bank's
Commitment, or any class of loans, letters of credit or commitments of
which any of the Loans or such Bank's Commitment forms a part, and the
result of any of the foregoing is
(i) to increase the cost to any Bank, or the Issuing Bank of
making, funding, issuing, renewing, extending or maintaining any of
the Loans or such Bank's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Bank, the Issuing Bank or
the Agent hereunder on account of such Bank's Commitment, any Letter
of Credit or any of the Loans, or
<PAGE>
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(iii) to require such Bank, the Issuing Bank or such Agent to
make any payment or to forego any interest or Reimbursement
Obligation or other sum payable hereunder, the amount of which
payment or foregone interest or Reimbursement Obligation or other sum
is calculated by reference to the gross amount of any sum receivable
or deemed received by such Bank, the Issuing Bank or such Agent from
any of the Borrowers hereunder,
then, and in each such case, the applicable Borrower will, upon demand made
by such Bank, the Issuing Bank or (as the case may be) such Agent at any
time and from time to time and as often as the occasion therefor may arise,
pay to such Bank, the Issuing Bank or such Agent such additional amounts as
will be sufficient to compensate such Bank, the Issuing Bank or such Agent
for such additional cost, reduction, payment or foregone interest or
Reimbursement Obligation or other sum.
If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive of any jurisdiction outside of
the United States of America or any subdivision thereof (whether or not
having the force of law), imposes or deems applicable any reserve
requirement against or fee with respect to assets of, deposits with or for
the account of, or credit extended by, the Australian Banks, and the result
of the foregoing is to increase the cost to such Banks of making or
maintaining Australian Revolving Credit Loans or the Australian Commitment
or to reduce the return received by the Australian Banks in connection with
such Loans or the Australian Commitment then, within 15 days of demand by
the Australian Banks, the Australian Borrower shall pay the Australian
Banks such additional amount or amounts as will compensate the Australian
Banks for such increased cost or reduction in amount received, provided
--------
that the Australian Borrower shall not be required to compensate the
Australian Banks for such non-U.S. reserve costs or fees to the extent that
an amount equal to such reserve costs or fees is received by the Australian
Banks as a result of the calculation of the interest rate applicable to
such Loans. Any increased cost shall be determined and applied in the same
way as for similar credit customers.
6.7. Capital Adequacy.
----------------
If after the date hereof any Bank or any of the Agents determines
that (a) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force
of law) regarding capital requirements for banks or bank holding companies
or any change in the interpretation or application thereof by a court or
governmental authority with appropriate jurisdiction, or (b) compliance by
such Bank or such Agent or any corporation controlling such Bank or such
Agent with any law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) of
<PAGE>
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any such entity regarding capital adequacy, has the effect of reducing
the return on such Bank's or such Agent's commitment with respect to
any Loans to a level below that which such Bank or such Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or such Agent's then existing policies with
respect to capital adequacy and assuming full utilization of such
entity's capital) by any amount deemed by such Bank or (as the case may
be) such Agent to be material, then such Bank or such Agent may notify
the applicable Borrower of such fact. To the extent that the amount of
such reduction in the return on capital is based on the US Commitment,
Mexican Commitment, US Loans, Mexican Loans or the Canadian Term Loan
and is not reflected in the interest or fees payable by the US
Borrower, the Canadian Borrower or the Mexican Borrower (as the case
may be), such Borrower and such Bank shall thereafter attempt to
negotiate in good faith, within thirty (30) days of the day on which
such Borrower receives such notice, an adjustment payable hereunder
that will adequately compensate such Bank in light of these
circumstances. If such Borrower and such Bank are unable to agree to
such adjustment within thirty (30) days of the date on which such
Borrower receives such notice, then commencing on the date of such
notice (but not earlier than the effective date of any such increased
capital requirement), the fees payable hereunder shall increase by an
amount that will, in such Bank's reasonable determination, provide
adequate compensation. To the extent that the amount of such reduction
in the return on capital is based on the Australian Commitment or the
Australian Revolving Credit Loans and is not reflected in the interest
or fees payable by the Australian Borrower, the Australian Borrower and
such Bank shall thereafter attempt to negotiate in good faith, within
thirty (30) days of the date on which the Australian Borrower receives
such notice, an adjustment payable hereunder that will adequately
compensate such Bank in light of these circumstances. If the Australian
Borrower and such Bank are unable to agree to such adjustment within
thirty (30) days of the date on which the Australian Borrower receives
such notice, then commencing on the date of such notice (but not
earlier than the effective date of any such increased capital
requirement), the fees payable hereunder shall increase by an amount
that will, in such Bank's reasonable determination, provide adequate
compensation. Each Bank shall allocate such cost increases among its
customers in good faith and on an equitable basis.
6.8. Certificate. A certificate setting forth any additional amounts
-----------
payable pursuant to (S)(S)6.6 or 6.7 and a brief explanation of such amounts
which are due, submitted by any Bank, the Issuing Bank or any of the Agents to
the Borrowers, shall be conclusive, absent manifest error, that such amounts are
due and owing.
<PAGE>
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6.9. Indemnity.
---------
(a) Subject to (S)6.14, the US Borrower, the Canadian Borrower
and the Mexican Borrower (as the case may be) agree to indemnify each
US Bank and to hold such Bank harmless from and against any loss, cost
or expense (including loss of anticipated profits) that such Bank may
sustain or incur as a consequence of (i) default by such Borrower in
payment of the principal amount of or any interest on any Eurocurrency
Rate Loans or Canadian Eurodollar Rate Loans or CDOR Rate Loans (as the
case may be) as and when due and payable, including any such loss or
expense arising from interest or fees payable by such Bank to Banks of
funds obtained by it in order to maintain its Eurocurrency Rate Loans
or Canadian Eurodollar Rate Loans or CDOR Rate Loans (as the case may
be), (ii) default by such Borrower in making a borrowing or conversion
after such Borrower has given (or is deemed to have given) a US
Revolving Credit Loan Request, Mexican Revolving Credit Loan Request or
a Conversion Request or Continuation Request relating thereto in
accordance with (S)(S)2.8, 2.9, 2.10 or 3.6 or (iii) the making of any
payment of a Eurocurrency Rate Loan or Canadian Eurodollar Rate Loans
(as the case may be) or the making of any conversion of any
Eurocurrency Loan to a Base Rate Loan, on a day that is not the last
day of the applicable Interest Period with respect thereto, including
interest or fees payable by such Bank to lenders of funds obtained by
it in order to maintain any such Loans, including, without limitation,
repayments required by (S)4.2.
(b) The Australian Borrower agrees to indemnify each Australian
Bank and to hold such Bank harmless from and against any loss, cost or
expense (including loss of anticipated profits) that such Bank may
sustain or incur as a consequence of (i) default by the Australian
Borrower in payment of the principal amount of or any interest on any
BBSW Rate Loans or Australian Base Rate Loans as and when due and
payable, including any such loss or expense arising from interest or
fees payable by such Bank to Banks of funds obtained by it in order to
maintain its BBSW Rate Loans or Australian Base Rate Loans, (ii)
default by the Australian Borrower in making a borrowing after the
Australian Borrower has given (or is deemed to have given) an
Australian Revolving Credit Loan Request relating thereto in accordance
with (S)2.8 or (iii) the making of any payment of a BBSW Rate Loan or
Australian Base Rate Loan on a day that is not the last day of the
applicable Interest Period with respect thereto, including interest or
fees payable by such Bank to Banks of funds obtained by it in order to
maintain any such Loans, including, without limitation, repayments
required by (S)4.2.
6.10. Interest After Default.
-----------------------
6.10.1. Overdue Amounts. During the continuance of an Event of
---------------
Default, overdue principal and (to the extent permitted by applicable
law) interest on the Loans and all other overdue amounts payable
<PAGE>
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hereunder or under any of the other Loan Documents shall bear interest
compounded monthly and payable on demand at a rate per annum equal to
three percent (3%) above the Base Rate for the US Loans and the Mexican
Loans and four percent (4%) above the CDOR Rate for the Canadian Term
Loan and three percent (3%) above the Australian Base Rate for the
Australian Revolving Credit Loans until such amount shall be paid in
full (after as well as before judgment).
6.10.2. Amounts Not Overdue. During the continuance of an
-------------------
Event of Default the principal of the Loans not overdue shall, until
such Event of Default has been cured or remedied or such Event of
Default has been waived by the Majority Banks pursuant to (S)27, bear
interest at a rate per annum equal to one percent (1%) above the rate
of interest otherwise applicable to such Loans.
6.11. Replacement of Banks. If any Bank (an "Affected Bank") (a) makes
-------------------- -------- ----
demand upon a Borrower for (or if a Borrower is otherwise required to pay)
amounts pursuant to (S)(S)6.2.3.2, 6.6, or 6.7, (b) is unable to make or
maintain Eurocurrency Rate Loans as a result of a condition described in (S)6.4
or (c) defaults in its obligation to make Loans, in accordance with the terms of
this Credit Agreement (such Bank being referred to as a "Defaulting Bank"), 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 (S)6.4 to be applicable), or default, as the case may
be, by notice (a "Replacement Notice") in writing to the applicable Agent and
such Affected Bank (i) request the Affected Bank to cooperate with such Borrower
in obtaining a replacement bank satisfactory to the applicable Agent and such
Borrower (the "Replacement Bank"); (ii) request the non-Affected Banks to
----------- ----
acquire and assume all of the Affected Bank's Loans and Commitments, as provided
herein, but none of such Banks shall be under an obligation to do so; or (iii)
designate a Replacement Bank approved by the applicable Agent, such approval not
to be unreasonably withheld or delayed. If any satisfactory Replacement Bank
shall be obtained, and/or if any one or more of the non-Affected Banks shall
agree to acquire and assume all of the Affected Bank's Loans and Commitments,
then such Affected Bank shall assign, in accordance with (S)20, all of its
Commitments, Loans, Letter of Credit Participations, and other rights and
obligations under this Credit Agreement and all other Loan Documents to such
Replacement Bank or non-Affected Banks, 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 Bank; 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 Bank and such Replacement Bank and/or
non-Affected Banks, as the case may be, and (B) prior to any such assignment,
the Borrower shall have paid to such Affected Bank all amounts properly demanded
and unreimbursed under (S)(S)6.2.3.2, 6.6 or 6.7. Upon the effective date of
such assignment, the applicable Borrower shall issue replacement Notes, if
applicable, to such Replacement Bank and/or non-Affected Banks, as the case may
be, and such
<PAGE>
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institution shall become a "Bank" for all purposes under this Credit Agreement
and the other Loan Documents.
6.12. Taxes.
-----
(a) All payments by any of the Borrowers to or for the account
of any Bank or any of the Agents hereunder or under any Loan shall be
made free and clear of and without deduction for any and all taxes,
which expression as used herein, includes any and all present or future
taxes, duties, levies, imposts, deductions, charges or withholdings,
and any and all liabilities with respect to the foregoing excluding
Other Taxes as defined in (S)6.12(b). If any Borrower shall be required
by law to deduct any taxes from or in respect of any sum payable
hereunder to any Bank or any of the Agents, (i) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
(S)6.12) such Bank or such Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions
been made, (ii) such Borrower shall make such deductions, (iii) such
Borrower shall pay the full amount deducted to the relevant authority
in accordance with applicable law and (iv) such Borrower shall furnish
to the applicable Agent the original copy of a receipt evidencing
payment thereof within 30 days after such payment is made.
(b) In addition, each of the Borrowers agree to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any payment
made hereunder or under any Loan or from the execution or delivery of,
or otherwise with respect to, this Credit Agreement or any Loan ("Other
-----
Taxes").
-----
(c) If a Bank determines in its sole and absolute discretion
that it has received a credit or other benefit in respect or any such
tax deduction reimbursed or made on its behalf by the Borrowers in
excess of such credits or benefits to which such Bank is otherwise
entitled, it shall promptly remit the same to or for the account of
such Borrower; provided that no Bank shall be required to take a tax
--------
reporting position pursuant to the foregoing provision which will
produce any net benefit to it with respect to foreign tax payments.
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 Bank shall be
absolutely limited to, and shall in no event exceed, the maximum amount of
interest which could lawfully be charged or collected under applicable law
(including, to the extent applicable, the provisions of Section 5197 of the
Revised Statutes of the United States of America, as amended, 12 U.S.C. Section
85, as amended and the Criminal Code (Canada)), so that the maximum
<PAGE>
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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. Concerning Joint and Several Liability of the Borrowers.
-------------------------------------------------------
(a) The US Borrower, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrowers, as applicable, with
respect to the payment and performance of all of the Obligations (including,
without limitation, any Obligations arising under this (S)6.14), it being the
intention of the parties hereto that all of the Obligations shall be the joint
and several obligations of the US Borrower.
(b) If and to the extent that any of the Borrowers shall fail
to make any payment with respect to any of the Obligations as and when due or to
perform any of the Obligations in accordance with the terms thereof, then in
each such event the US Borrower will make such payment with respect to, or
perform, such Obligation.
(c) The Obligations of the US Borrower under the provisions of
this (S)6.14 constitute full recourse obligations of the US Borrower enforceable
against the US Borrower to the full extent of its properties and assets,
irrespective of the validity, regularity or enforceability of this Credit
Agreement or any other circumstance whatsoever.
(d) Except as otherwise expressly provided in this Credit
Agreement, the US Borrower, to the fullest extent permitted by applicable law,
hereby waives notice of acceptance of its joint and several liability, notice of
any Loans made under this Credit Agreement, notice of any action at any time
taken or omitted by the Agents or the Banks under or in respect of any of the
Obligations, and, generally, to the extent permitted by applicable law, all
demands, notices and other formalities of every kind in connection with this
Credit Agreement. The US Borrower, to the fullest extent permitted by applicable
law, hereby waives all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or hereafter in effect,
any right to require the marshaling of assets of the Borrowers and any other
entity or Person primarily or secondarily liable with respect to any of the
Obligations and all suretyship defenses generally. The US Borrower, to the
fullest extent permitted by applicable law, hereby assents to, and waives notice
of, any extension or postponement of the time for the payment of any of the
Obligations, the acceptance of any payment of any of the Obligations, the
acceptance of any partial payment thereon, any waiver, consent or other action
or acquiescence by the Banks at any time or times in respect of any default by
any of the Borrowers in the performance or satisfaction of any term, covenant,
condition or provision of this Credit Agreement, any and all other indulgences
<PAGE>
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whatsoever by the Banks in respect of any of the Obligations, and the taking,
addition, substitution or release, in whole or in part, at any time or times, of
any security for any of the Obligations or the addition, substitution or
release, in whole or in part, of any of the Borrowers. Without limiting the
generality of the foregoing, the US Borrower assents to any other action or
delay in acting or failure to act on the part of the Banks with respect to the
failure by any of the Borrowers to comply with any of its respective
Obligations, including, without limitation, any failure strictly or diligently
to assert any right or to pursue any remedy or to comply fully with applicable
laws or regulations thereunder, which might, but for the provisions of this
(S)6.14, afford grounds for terminating, discharging or relieving any of the
Borrowers, in whole or in part, from any of its Obligations, under this (S)6.14,
it being the intention of each of the US Borrower that, so long as any of the
Obligations hereunder remain unsatisfied, the Obligations of the US Borrower
under this (S)6.14 shall not be discharged except by performance and then only
to the extent of such performance. The Obligations of each of the US Borrower
under this (S)6.14 shall not be diminished or rendered unenforceable by any
winding up, reorganization, arrangement, liquidation, re-construction or similar
proceeding with respect to any of the Borrowers, the Agents or the Banks. The
joint and several liability of the US Borrower hereunder shall continue in full
force and effect notwithstanding any absorption, merger, amalgamation or any
other change whatsoever in the name, membership, constitution or place of
formation of any of the Borrowers, the Agents or the Banks.
(e) The US Borrower hereby agrees that it will not enforce any
of its rights of contribution or subrogation against the other Borrowers with
respect to any liability incurred by it hereunder or under any of the other Loan
Documents, any payments made by it to any of the Banks or the Agents with
respect to any of the Obligations or any collateral security therefor until such
time as all of the Obligations have been irrevocably paid in full in cash. Any
claim which any Borrower may have against any other Borrower with respect to any
payments to the Banks or the Agents hereunder or under any other Loan Document
are hereby expressly made subordinate and junior in right of payment, without
limitation as to any increases in the Obligations arising hereunder or
thereunder, to the prior payment in full of the Obligations and, in the event of
any insolvency, bankruptcy, receivership, liquidation, reorganization or other
similar proceeding under the laws of any jurisdiction relating to any Borrower,
its debts or its assets, whether voluntary or involuntary, all such Obligations
shall be paid in full before any payment or distribution of any character,
whether in cash, securities or other property, shall be made to any other
Borrower therefor.
(f) Each of the Borrowers hereby agrees that the payment of any
amounts due with respect to the indebtedness owing by any Borrower to any other
Borrower is hereby subordinated to the prior payment in full in cash of the
Obligations; provided that regularly scheduled payments of principal and
-------- ----
interest due in respect of such indebtedness may be made when due unless and
until a Default or Event of Default shall have occurred. Each Borrower hereby
agrees that after the occurrences and during the continuance of any Default or
<PAGE>
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Event of Default, such Borrower will not demand, sue for or otherwise attempt to
collect any indebtedness of any other Borrower owing to such Borrower until the
Obligations shall have been paid in full in cash. If, notwithstanding the
foregoing sentence, such Borrower shall collect, enforce or receive any amounts
in respect of such indebtedness before payment in full in cash of the
Obligations, such amounts shall be collected, enforced, received by such
Borrower as trustee for the Administrative Agent and be paid over to the
Administrative Agent for the pro rata accounts of the relevant Banks to be
applied to repay (or be held as security for the repayment of) the Obligations
or Canadian Obligations or Australian Obligations or Mexican Obligations, as
applicable.
(g) The provisions of this (S)6.14 are made for the benefit of
the Agents and the Banks and their successors and assigns, and may be enforced
in good faith by them from time to time against any or all of the Borrowers as
often as the occasion therefor may arise and without requirement on the part of
the Agents or the Banks first to marshal any of their claims or to exercise any
of their rights against any 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 (S)6.14 shall remain in effect until all of the
Obligations shall have been paid in full or otherwise fully satisfied. If at any
time, any payment, or any part thereof, made in respect of any of the
Obligations, is rescinded or must otherwise be restored or returned by the
Agents or the Banks upon the insolvency, bankruptcy or reorganization of any of
the Borrowers or is repaid in good faith settlement of a pending or threatened
avoidance claim, or otherwise, the provisions of this (S)6.14 will forthwith be
reinstated in effect, as though such payment had not been made.
7. GUARANTY AND COLLATERAL SECURITY
--------------------------------
7.1. Guaranty. As an inducement to the Banks and the Issuing Bank to
--------
make the Loans and Letters of Credit (where applicable) available to the
Borrowers, (a) the US Guarantors hereby unconditionally and irrevocably
guarantee (i) the full punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of the Borrowers now or hereafter
existing whether for principal, interest, fees, expenses or otherwise under this
Credit Agreement or any of the other Loan Documents, and (ii) the strict
performance and observance by the Borrowers of all agreements, warranties and
covenants applicable to the Borrowers in the Loan Documents (such Obligations
collectively being hereafter referred to as the US Guarantors' "US Guaranteed
-------------
Obligations"); (b) to the fullest extent permitted by applicable law, GWI, the
- -----------
Canadian Borrower, the Canadian Guarantors (other than Huron), the Mexican
Borrower, the Mexican Guarantors and the Australian Guarantors hereby
unconditionally and irrevocably guarantee (i) the full punctual payment when
due, whether at stated maturity, by acceleration or otherwise, of the Australian
Obligations, and (ii) the strict performance and observance by the Australian
Borrower of all agreements, warranties and covenants applicable to the
Australian Borrower in the Loan Documents (such
<PAGE>
-88-
Obligations collectively being referred to as GWI's, the Canadian Borrower's,
the Canadian Guarantors' the Mexican Borrower's and Mexican Guarantors' and the
Australian Guarantors' "Australian Guaranteed Obligations"); (c) to the fullest
---------- ---------- -----------
extent permitted by applicable law, GWI, ASR, the Australian Guarantors, the
Mexican Borrower, the Mexican Guarantors and the Canadian Guarantors (other than
Huron) hereby unconditionally and irrevocably guarantee (i) the full punctual
payment when due, whether at stated maturity by acceleration or others, of the
Canadian Obligations, and (ii) the strict performance and observance by the
Canadian Borrower of all agreements, warranties and covenants applicable to the
Canadian Borrower in the Loan Documents (such obligations collectively being
referred to as GWI's, ASR's, the Australian Guarantors', the Mexican Borrowers,
the Mexican Guarantors' and the Canadian Guarantors' (other than Huron)
"Canadian Guaranteed Obligations"); (d) to the fullest extent permitted by
- --------- ---------- -----------
applicable law, GWI, ASR, the Australian Guarantors, the Canadian Borrower, the
Canadian Guarantors (other than Huron) and the Mexican Guarantors hereby
unconditionally and irrevocably guarantee (i) the full punctual payment when
due, whether at stated maturity, by acceleration or otherwise, of the Mexican
Obligations, and (ii) the strict performance and observance by the Mexican
Borrower of all agreements, warranties and covenants applicable to the Mexican
Borrower in the Loan Documents (such Obligations collectively being referred to
GWI's, ASR's, the Australian Guarantors', the Canadian Borrower's, the Canadian
Guarantors', and the Mexican Guarantors' "Mexican Guaranteed Obligations"); and
------- ---------- -----------
(e) to the fullest extent permitted by applicable law, Huron hereby
unconditionally and irrevocably guarantees (i) the full punctual payment when
due, whether at stated maturity, acceleration or otherwise, of the GRO
Obligations, and (ii) the strict performance and observance by GRO of all
agreements, warranties and covenants applicable to GRO in the Loan Documents
(such Obligations collectively being referred to as Huron's "GRO Guaranteed
--- ----------
Obligations"). In order to secure the Guaranteed Obligations, GWI, ASR, the
- -----------
Australian Guarantors, the Canadian Borrower, the Canadian Guarantors, the
Mexican Borrower and the Mexican Guarantors have fully executed and delivered
the Security Documents to which they are a party to the applicable Agent. The
Banks have agreed that ASR and the Australian Guarantors' guarantee of the
Canadian Guaranteed Obligations and the Mexican Guaranteed Obligations shall,
until further notice delivered by any Agent to ASR, be secured under the
Australian Security Agreements only to the extent of Aus.$34,000,000 less the
----
amount of Australian Obligations outstanding at any time (the "Australian
----------
Secured Amount"); provided, that ASR and the Australian Guarantors agree that
- ------- ------ --------
upon the request of any Agent, ASR and the Australian Guarantors shall appoint
such Agent as attorney-in-fact to give notice increasing the Australian Secured
Amount and will pay any additional stamp duty as a result thereof.
7.2. Guarantors Agreement to Pay Enforcement Costs, Etc. To the
--------------------------------------------------
extent the Guarantors are permitted to do so by applicable law, each of the
Guarantors guarantees that its Guaranteed Obligations will be paid strictly in
accordance with the terms hereof, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Bank, the Issuing Bank or any Agent with respect thereto. The
<PAGE>
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liability of each Guarantor with regard to its Guaranteed Obligations shall be
absolute and unconditional irrespective of:
(a) any change in the time, manner or place of payment of, or
in any other term of, all or any of its Guaranteed Obligations or any
other amendment or waiver of or any consent to departure from this
Credit Agreement or any other Loan Document;
(b) any release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of its Guaranteed
Obligations;
(c) any change in ownership of the Borrowers;
(d) any acceptance of any partial payment(s) from the Borrowers
or any other Guarantor; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any of the Borrowers in
respect of its Obligations under any Loan Document.
This guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any Guaranteed Obligation is
rescinded or must otherwise be returned by the Banks, the Issuing Bank or the
Agents upon the insolvency, bankruptcy or reorganization of any Borrower or
otherwise, all as though such payment had not been made.
7.3. Effectiveness; Enforcement. This guaranty shall be effective and
--------------------------
shall be deemed to be made with respect to each Loan made and each Letter of
Credit issued as of the time it is made, issued or accepted, as applicable. No
invalidity, irregularity or unenforceability by reason of any bankruptcy or
similar law, or any law or order of any government or agency thereof purporting
to reduce, amend or otherwise affect any liability of any Borrower, and no
defect in or insufficiency or want of powers of any Borrower or irregular or
improperly recorded exercise thereof, shall impair, affect, be a defense to or
claim against this guaranty. This guaranty is a continuing guaranty and shall
(a) survive any termination of this Credit Agreement, and (b) remain in full
force and effect until all Commitments have expired, all Outstanding Letters of
Credit have expired, matured or otherwise been terminated, and all Guaranteed
Obligations and all other amounts payable hereunder have been performed and paid
in full or otherwise satisfied. This guaranty is made for the benefit of the
Agents, the Issuing Bank and the Banks and their successors and assigns, and may
be enforced from time to time as often as occasion therefor may arise and
without requirement on the part of the Agents, the Issuing Bank or the Banks
first to exercise any rights against the Borrowers, or to resort to any other
source or means of obtaining payment of any of the said obligations or to elect
any other remedy.
<PAGE>
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7.4. Waivers. Except as otherwise specifically provided in any of the
-------
Loan Documents, each of the Guarantors hereby waives promptness, diligence,
protest, notice of protest, all suretyship defenses, the benefit of discussion,
the benefit of division, notice of acceptance and any other notice with respect
to any of its Guaranteed Obligations and this guaranty and any requirement that
the Banks, the Issuing Bank or the Agents protect, secure, perfect any security
interest or lien or any property subject thereto or exhaust any right or take
any action against the Borrowers, or any other Person. Each of the Guarantors
also irrevocably waives, to the fullest extent permitted by law, all defenses
which at any time may be available to it in respect of its Guaranteed
Obligations by virtue of any statute of limitations, valuation, stay, moratorium
law or other similar law now or hereafter in effect.
7.5. Expenses. Each of the Guarantors hereby promises to reimburse
--------
(a) the Administrative Agent for all reasonable out-of-pocket fees and
disbursements (including all reasonable attorneys' fees), incurred or expended
in connection with the preparation, filing or recording, or interpretation of
this guaranty, the Credit Agreement and the other Loan Documents to which such
Guarantor is a party, or any amendment, modification, approval, consent or
waiver hereof or thereof, and (b) the Agents, the Issuing Bank and the Banks and
their respective affiliates for all reasonable out-of-pocket fees and
disbursements (including reasonable attorneys' fees), incurred or expended in
connection with the enforcement of its Guaranteed Obligations (whether or not
legal proceedings are instituted).
7.6. Concerning Joint and Several Liability of the Guarantors.
--------------------------------------------------------
(a) Each of the Guarantors (other than the Canadian Borrower,
the Canadian Guarantors, the Australian Borrower, the Australian
Guarantors, the Mexican Borrower and the Mexican Guarantors, each of
which is acting with each of the other Guarantors as a surety only and
not as a co-debtor) hereby irrevocably and unconditionally accepts, not
merely as a surety but also as a co-debtor, joint and several liability
with the applicable Borrower, with respect to the payment and
performance of all of its Guaranteed Obligations (including, without
limitation, any Guaranteed Obligations arising under this (S)7), it
being the intention of the parties hereto that (i) all such Guaranteed
Obligations shall be the joint and several Guaranteed Obligations of
the US Guarantors; (ii) the Australian Guaranteed Obligations shall be
the joint and several Obligations of GWI, the Canadian Borrower (as
surety only), the Canadian Guarantors (as surety only), the Mexican
Borrower (as surety only), the Mexican Guarantors (as surety only) and
the Australian Guarantors without preferences or distinction among
them; (iii) the Canadian Guaranteed Obligations shall be the joint and
several Obligations of GWI, ASR (as surety only), the Australian
Guarantors (as surety only), the Mexican Borrower (as surety only), the
Mexican Guarantors (as surety only) and the Canadian Guarantors (other
than Huron) (as surety only) without preferences or distribution among
them; (iv) the Mexican Guaranteed Obligations shall be the joint and
several
<PAGE>
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obligations of GWI, ASR (as surety only), the Australian Guarantors (as
surety only), the Canadian Borrower (as surety only), the Canadian
Guarantors (as surety only) and the Mexican Guarantors without
preferences or distribution among them; and (v) the GRO Guaranteed
Obligations shall be the obligation of Huron.
(b) If and to the extent that the applicable Borrower shall
fail to make any payment with respect to any of its Obligations as and
when due or to perform any of its Obligations in accordance with the
terms thereof, then in each such event the applicable co-Guarantors
will make such payment with respect to, or perform, such Guaranteed
Obligations.
(c) The Guaranteed Obligations of each Guarantor under the
provisions of this (S)7 constitute full recourse obligations of such
Guarantor enforceable against such Guarantor to the full extent of its
properties and assets, irrespective of the validity, regularity or
enforceability of this Credit Agreement or any other circumstance
whatsoever.
(d) Except as otherwise expressly provided in this Credit
Agreement, each of the Guarantors hereby waives notice of acceptance of
its joint and several liability, notice of any Loans made or Letters of
Credit issued under this Credit Agreement, notice of any action at any
time taken or omitted by the Agents, the Issuing Bank or the Banks
under or in respect of any of the Guaranteed Obligations, and,
generally, to the extent permitted by applicable law, all demands,
notices and other formalities of every kind in connection with this
Credit Agreement and this guaranty. Each of the Guarantors hereby
assents to, and waives notice of, any extension or postponement of the
time for the payment of any of the Guaranteed Obligations, the
acceptance of any payment of any of the Guaranteed Obligations, the
acceptance of any partial payment thereon, any waiver, consent or other
action or acquiescence by the Agents, the Issuing Bank or the Banks at
any time or times in respect of any Default or Event of Default by any
of the Borrowers or the Guarantors in the performance or satisfaction
of any term, covenant, condition or provision of this Credit Agreement,
any and all other indulgences whatsoever by the Agents, the Issuing
Bank or the Banks in respect of any of the Guaranteed Obligations, and
the taking, addition, substitution or release, in whole or in part, at
any time or times, of any security for any of the Guaranteed
Obligations or the addition, substitution or release, in whole or in
part, of any of the Borrowers or any other Guarantor. Without limiting
the generality of the foregoing, each of the Guarantors assents to any
other action or delay in acting or failure to act on the part of the
Banks, the Issuing Bank or the Agents with respect to the failure by
any of the Borrowers or the other Guarantor to comply with its
respective Obligations or Guaranteed Obligations, including, without
limitation, any failure strictly or diligently to assert any right or
to pursue any remedy or to comply fully with applicable laws or
regulations thereunder, which might, but for the
<PAGE>
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provisions of this (S)7, afford grounds for terminating, discharging or
relieving any Guarantor, in whole or in part, from any of the
Guaranteed Obligations under this (S)7, it being the intention of the
Guarantors that, so long as any of the Guaranteed Obligations hereunder
remain unsatisfied, the Guaranteed Obligations of each of the
Guarantors under this (S)7 shall not be discharged except by
performance and then only to the extent of such performance. The
Guaranteed Obligations of each of the Guarantors under this (S)7 shall
not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar
proceeding with respect to any of the Borrowers or the Guarantors or
the Banks, the Issuing Bank or the Agents. The joint and several
liability of each of the Guarantors hereunder shall continue in full
force and effect notwithstanding any absorption, merger, consolidation,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of the Borrowers or the Guarantors,
the Banks, the Issuing Bank or the Agents.
(e) The US Guarantors, GWI (solely in its capacity as a
Guarantor of the Australian Guaranteed Obligations, the Canadian
Guaranteed Obligations and the Mexican Guaranteed Obligations under
this (S)7), ASR (solely in its capacity as a Guarantor of the Canadian
Guaranteed Obligations and the Mexican Guaranteed Obligations under
this (S)7), the Canadian Borrower (solely in its capacity as a
Guarantor of the Australian Guaranteed Obligations and the Mexican
Guaranteed Obligations under this (S)7), the Canadian Guarantors
(solely in their capacity as Guarantors of the Australian Guaranteed
Obligations, the Canadian Guaranteed Obligations and the Mexican
Guaranteed Obligations), ASR (solely in its capacity as a Guarantor of
the Canadian Guaranteed Obligations and the Mexican Guaranteed
Obligations under this (S)7), the Australian Guarantors (solely in
their capacity as Guarantors of the Australian Guaranteed Obligations,
the Canadian Guaranteed Obligations and the Mexican Guaranteed
Obligations), the Mexican Borrower (solely in its capacity as Guarantor
of the Canadian Guaranteed Obligations and the Australian Guaranteed
Obligations under this (S)7), the Mexican Guarantors (solely in their
capacity as Guarantors of the Canadian Guaranteed Obligations, the
Australian Guaranteed Obligations and the Mexican Guaranteed
Obligations) and the Huron (solely in its capacity as Guarantor of the
GRO Guaranteed Obligations), shall be liable under the Guaranty under
this (S)7 only for the maximum amount of such liabilities that can be
incurred under applicable law without rendering this Credit Agreement,
as it relates to the guaranty under this (S)7, voidable under
applicable law relating to fraudulent conveyance, fraudulent transfer
and corporate financial assistance, and not for any greater amount.
Accordingly, if any obligation under any provision of the guaranty
under this (S)7 shall be declared to be invalid or unenforceable in any
respect or to any extent, it is the stated intention and agreement of
the Guarantors, the Agents, the Issuing Bank, and the Banks that any
balance of the obligation created
<PAGE>
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by such provision and all other obligations of the Guarantors under
this (S)7 to the Banks, the Issuing Bank or the Agents shall remain
valid and enforceable, and that all sums not in excess of those
permitted under applicable law shall remain fully collectible by the
Banks, the Issuing Bank and the Agents from the US Guarantors, GWI,
ASR, the Canadian Borrower, the Canadian Guarantors, the Australian
Guarantors, the Mexican Borrower and the Mexican Guarantors, as the
case may be.
(f) To the extent any Guarantor makes a payment hereunder in
excess of the aggregate amount of the benefit received by such
Guarantor in respect of the extensions of credit under the Credit
Agreement (the "Benefit Amount"), then such Guarantor, after the
payment in full, in cash, of all of the Obligations, shall be entitled
to recover from the Borrowers and each other Guarantor such excess
payment, pro rata, in accordance with the ratio of the Benefit Amount
--- ----
received by each such other Guarantor to the total Benefit Amount
received by all Guarantors, and the right to such recovery shall be
deemed to be an asset and property of such Guarantor so funding;
provided, that each of the Guarantors hereby agrees that it will not
--------
enforce any of its rights of contribution or subrogation against the
other Guarantors with respect to any liability incurred by it
hereunder or under any of the other Loan Documents, any payments made
by it to any of the Banks or the Agents with respect to any of the
Obligations or any collateral security therefor until such time as all
of the Obligations have been irrevocably paid in full in cash. Any
claim which any Guarantor may have against any other Guarantor with
respect to any payments to the Banks or the Agents hereunder or under
any other Loan Document are hereby expressly made subordinate and
junior in right of payment, without limitation as to any increases in
the Obligations arising hereunder or thereunder, to the prior payment
in full of the Obligations and, in the event of any insolvency,
bankruptcy, receivership, liquidation, reorganization or other similar
proceeding under the laws of any jurisdiction relating to any
Guarantor, its debts or its assets, whether voluntary or involuntary,
all such Obligations shall be paid in full before any payment or
distribution of any character, whether in cash, securities or other
property, shall be made to any other Guarantor therefor.
(g) Each of the Guarantors hereby agrees that the payment of
any amounts due with respect to the indebtedness owing by any Guarantor
to any other Guarantor or Borrower is hereby subordinated to the prior
payment in full in cash of the Obligations. Each Guarantor hereby
agrees that after the occurrences and during the continuance of any
Default or Event of Default, such Guarantor will not demand, sue for or
otherwise attempt to collect any indebtedness of any other Guarantor or
Borrower owing to such Guarantor until the Obligations shall have been
paid in full in cash. If, notwithstanding the foregoing sentence, such
Guarantor shall collect, enforce or receive any amounts in respect of
such indebtedness before payment in full in cash of the Obligations,
<PAGE>
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such amounts shall be collected, enforced, received by such Guarantor
as trustee for the Administrative Agent and be paid over to the
Administrative Agent to be applied to repay (or be held as security for
the repayment of) the Obligations.
(h) The provisions of this (S)7 (other than 7.6(f), which is
made for the benefit of the Guarantors) are made for the benefit of the
Agents, the Issuing Bank and the Banks and their successors and
assigns, and may be enforced in good faith by them from time to time
against the Guarantors as often as occasion therefor may arise and
without requirement on the part of the Agents, the Issuing Bank or the
Banks first to marshal any of their claims or to exercise any of their
rights against the Borrowers or the Guarantors or to exhaust any
remedies available to them against the Borrowers or the Guarantors or
to resort to any other source or means of obtaining payment of any of
the obligations hereunder or to elect any other remedy. The provisions
of this (S)7 shall remain in effect until all of the Guaranteed
Obligations shall have been paid in full or otherwise fully satisfied
and the US Commitments, Australian Commitments and Mexican Commitments
have expired and all outstanding Letters of Credit have expired,
matured or otherwise been terminated. If at any time, any payment, or
any part thereof, made in respect of any of the Guaranteed Obligations,
is rescinded or must otherwise be restored or returned by the Banks,
the Issuing Bank or the Agents upon the insolvency, bankruptcy or
reorganization of any of the Borrowers or the Guarantors, or otherwise,
the provisions of this (S)7 will forthwith be reinstated in effect, as
though such payment had not been made.
Until the final payment and performance in full of all of the
Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any
rights such Guarantor may have against any of the Borrowers or any other
Guarantor arising as a result of payment by such Guarantor hereunder, by way of
subrogation, reimbursement, restitution, contribution or otherwise, and will not
prove any claim in competition with the Agents, the Issuing Bank or any Bank in
respect of any payment hereunder in any bankruptcy, insolvency or reorganization
case or proceedings of any nature; such Guarantor will not claim any setoff,
recoupment or counterclaim against the Borrowers or the other Guarantor in
respect of any liability of the Borrowers to such Guarantor; and such Guarantor
waives any benefit of and any right to participate in any collateral security
which may be held by the Agents, the Issuing Bank or any Bank.
7.7. Subrogation; Subordination. The payment of any amounts due with
--------------------------
respect to any indebtedness of the Borrowers or GRO for money borrowed or credit
received now or hereafter owed to the Guarantors is hereby subordinated to the
prior payment in full of all of the Obligations. Each of the Guarantors agrees
that, after the occurrence of any default in the payment or performance of any
of the Obligations, such Guarantor will not demand, sue for or otherwise attempt
to collect any such indebtedness of the Borrowers or GRO
<PAGE>
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or any other Guarantor to such Guarantor until all of the Obligations shall have
been paid in full. If, notwithstanding the foregoing sentence, any Guarantor
shall collect, enforce or receive any amounts in respect of such indebtedness
while any Obligations are still outstanding, such amounts shall be collected,
enforced and received by such Guarantor as trustee for the Banks, the Issuing
Bank and the Agents and be paid over to the Administrative Agent, for the
benefit of the Banks, the Issuing Bank, and the Agents on account of the
Obligations without affecting in any manner the liability of such Guarantor
under the other provisions hereof.
7.8. Currency of Payment. Each of the Guarantors shall pay its
-------------------
respective Guaranteed Obligations in the currency in which such Obligation was
incurred by the applicable Borrower or GRO, as the case may be.
7.9. Indemnity. Each of the Guarantors, as a separate and additional
---------
liability further undertakes and agrees to indemnify and keep indemnified upon
written demand, each of the Banks and the Agents (together and each separately
in this (S)7.9 called the "Creditors") against any loss, damage, cost, charge or
---------
expense whatsoever that the Creditors may suffer by reason of, in connection
with, or as a consequence of:
(i) the non-payment of any of its Guaranteed
Obligations or the non-performance or non-observance of any of
its Guaranteed Obligations;
(ii) the liability of the Borrowers or GRO, as
applicable, to pay the Guaranteed Obligations to the Creditors
or to perform the Guaranteed Obligations being void, voidable
or unenforceable in whole or in part, as a result of any lack
of capacity, power or authority or any improper exercise of
power or authority on the part of the Borrowers or GRO;
(iii) the Borrowers or GRO becoming insolvent,
including: (x) the amount of any payment made to the Creditors
which is void or voidable against any person; and (y) the
amount of any interest (including capitalized interest) which
does not accrue from the date of insolvency or is not
recoverable by reason of the insolvency, and which would
otherwise have been recoverable from the Guarantors under this
Credit Agreement; or
(iv) the Guaranteed Obligations being (or moneys
which would have been Guaranteed Obligations had they not been
irrecoverable) not recoverable from the Borrowers or GRO in
whole or in part and not recoverable from the Guarantors under
the guarantee in this (S)7 by reason of any other fact or
circumstance whatsoever and whether the transactions or any of
them relating to such moneys have been void, voidable or
illegal or have been subsequently avoided and whether or not
any of the matters or
<PAGE>
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facts relating thereto have been or ought to have been within
the knowledge of the Creditors.
8. REPRESENTATIONS AND WARRANTIES.
------------------------------
Each of the Borrowers represents and warrants to the Banks, the Issuing
Bank and the Agents as follows:
8.1. Corporate Authority.
-------------------
8.1.1. Incorporation; Good Standing. Each of the Borrowers and
----------------------------
its Restricted Subsidiaries (a) is a corporation or partnership duly
organized, validly existing and in good standing under the laws of its
state or country of incorporation or formation, (b) has all requisite
corporate or other power to own its property and conduct its business
as now conducted and as presently contemplated, and (c) is in good
standing as a foreign corporation (or similar business entity) and is
duly authorized to do business in each jurisdiction where such
qualification is necessary except where a failure to be so qualified
would not have a materially adverse effect on the business, assets or
financial condition of such Borrower or such Restricted Subsidiary.
8.1.2. Authorization. The execution, delivery and performance
-------------
of this Credit Agreement and the other Loan Documents to which any of
the Borrowers or any of their Restricted Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby (a)
are within the corporate or other authority of such Person, (b) have
been duly authorized by all necessary corporate or other proceedings,
(c) do not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which any such
Person is subject or any judgment, order, writ, injunction, license or
permit applicable to any such Person and (iv) do not conflict with any
provision of the corporate charter, bylaws, certificate of limited
partnership or partnership agreement of, or any agreement or other
instrument binding upon any such Person.
8.1.3. Enforceability. The execution and delivery of this
--------------
Credit Agreement and the other Loan Documents to which any of the
Borrowers or any of their Restricted Subsidiaries is or is to become a
party will result in valid and legally binding obligations of such
Person enforceable against it in accordance with the respective terms
and provisions hereof and thereof, except as enforceability is limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights
and except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be brought.
<PAGE>
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8.2. Governmental Approvals. The execution, delivery and performance
----------------------
by each of the Borrowers and each of its Restricted Subsidiaries of this
Credit Agreement, the other Loan Documents to which any of the Borrowers or
any of their Restricted Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby do not require the approval,
consent, order, authorization or license by, or giving of notice to, or taking
of any other action with respect to, any governmental agency or authority of
any jurisdiction (including, without limitation, the STB), or other fiscal,
monetary or other authority, under any provisions of any laws or governmental
rules, regulations, orders, or decrees of any jurisdiction or the central bank
of any jurisdiction or other fiscal, monetary or other authority, under any
provision of any laws or governmental rules, regulations, orders or decrees of
any jurisdiction applicable to or binding on any Borrower or any of their
Restricted Subsidiaries, other than those already obtained or to be obtained
on the Closing Date in connection with the Mexican Acquisition.
8.3. Title to Properties; Leases. Except as indicated on Schedule 8.3
--------------------------- -------- ---
hereto, each of the Borrowers and its Restricted Subsidiaries own all of the
assets reflected in the consolidated and consolidating balance sheets of the US
Borrower and its Restricted Subsidiaries as at the Balance Sheet Date or
acquired since that date (except property and assets sold or otherwise disposed
of in the ordinary course of business since that date), subject to no rights of
others, including any mortgages, leases, conditional sales agreements, title
retention agreements, liens or other encumbrances except Permitted Liens and the
rights of lessees and other parties lawfully in possession in the ordinary
course of business.
8.4. Financial Statements and Projections.
------------------------------------
8.4.1. Financial Statements. There has been furnished to each
--------------------
of the Banks the consolidated balance sheet of the US Borrower and its
Restricted Subsidiaries as of the Balance Sheet Date, and consolidated
statements of income and cash flows of the US Borrower and its
Restricted Subsidiaries, in each case for the fiscal year then ended,
audited by Arthur Andersen L.L.P. There has also been furnished to each
of the Banks the consolidating balance sheets of each of the Audited
Companies as of the Balance Sheet Date and consolidating statements of
income and cash flows of each of the Audited Companies, in each case
for the fiscal year then ended, audited by Arthur Andersen L.L.P. All
such balance sheets, statements of income, cash flow statements and
financial statements have been prepared in accordance with generally
accepted accounting principles and fairly present the financial
condition of the US Borrower and its Restricted Subsidiaries, as at the
close of business on the dates thereof and the results of operations
for the fiscal year or other period then ended. There are no contingent
liabilities of the US Borrower or its Restricted Subsidiaries as of
such dates involving material amounts, to the best of the knowledge of
the officers of any of the Borrowers, which were not disclosed in such
balance sheet and statements and the notes related thereto.
<PAGE>
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8.4.2. Projections. The projections of the US Borrower and its
-----------
Restricted Subsidiaries including (a) on an annual basis, consolidated
balance sheets, income and cash flow statements of the US Borrower and
its Restricted Subsidiaries, and consolidating balance sheets, income
and cash flow statements of the Audited Companies, in each case for the
period from January 1, 1999 through December 31, 2004 and (b) annual
calculations of the covenants contained in (S)11 hereof for the 1999
through 2004 fiscal years, copies of which have been delivered to each
Bank, disclose all assumptions made with respect to general economic,
financial and market conditions used in formulating such projections.
To the best knowledge of the Borrowers, no facts exist that
(individually or in the aggregate) would result in any material change
in any of such projections. The projections are based upon reasonable
estimates and assumptions, have been prepared on the basis of the
assumptions stated therein and reflect the reasonable estimates of the
Borrowers of the results of operations and other information projected
therein.
8.5. No Material Changes, Etc.; Solvency.
-----------------------------------
8.5.1. Changes. Since the Balance Sheet Date there has
-------
occurred no materially adverse change in the financial condition or
business of the US Borrower and its Restricted Subsidiaries, as shown
on or reflected in the consolidated and consolidating balance sheets of
the US Borrower and its Restricted Subsidiaries as at the Balance Sheet
Date, or the consolidated and consolidating statements of income for
the period then ended, other than changes in the ordinary course of
business that have not had any materially adverse effect on the
business or financial condition of the Borrowers and their Restricted
Subsidiaries. Since the Balance Sheet Date, the Borrowers have not made
any Restricted Payment in excess of the amount permitted by (S)10.4
hereof.
8.5.2. Solvency. Both before and after giving effect to the
--------
transactions contemplated by this Credit Agreement and the other Loan
Documents, the US Borrower and its Restricted Subsidiaries, on a
consolidated basis, are Solvent. As used herein, "Solvent" shall mean
-------
that the US Borrower and their Restricted Subsidiaries on a
consolidated basis (a) have assets having a fair value in excess of
their liabilities, (b) have assets having a fair value in excess of the
amount required to pay their liabilities on existing debts as such
debts become absolute and matured, and (c) have, and expect to continue
to have, access to adequate capital for the conduct of their business
and the ability to pay their debts from time to time incurred in
connection with the operation of their business as such debts mature.
8.6. Franchises, Patents, Copyrights, Etc. Each of the Borrowers and
-------------------------------------
each of their Restricted Subsidiaries possesses all franchises, patents,
copyrights, trademarks, trade names, licenses and permits, and rights in respect
of the foregoing, adequate for the conduct of its business substantially
<PAGE>
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as now conducted without, to the best of its knowledge, conflict with any rights
of others.
8.7. Litigation. Except as set forth in Schedule 8.7 hereto, there are
----------
no actions, suits, proceedings or investigations of any kind pending or
threatened against any of the Borrowers or their Restricted Subsidiaries before
any court, tribunal or administrative agency or board that, if adversely
determined, would materially adversely affect the properties, assets, financial
condition or business of the Borrowers and their Restricted Subsidiaries taken
as a whole or materially impair the right of the Borrowers and their Restricted
Subsidiaries, considered as a whole, to carry on business substantially as now
conducted by them, or result in any substantial liability not adequately covered
by insurance, or for which adequate reserves are not maintained on the
consolidated and consolidating balance sheets of the US Borrower and its
Restricted Subsidiaries, or which question the validity of this Credit Agreement
or any of the other Loan Documents, or any action taken or to be taken pursuant
hereto or thereto.
8.8. No Materially Adverse Contracts, Etc. None of the Borrowers or any
------------------------------------
of their Restricted Subsidiaries is subject to any charter, corporate or other
legal restriction, or any judgment, decree, order, rule or regulation that has
or is expected in the future to have a materially adverse effect on the
business, assets or financial condition of the Borrowers and their Restricted
Subsidiaries either individually or taken as a whole. None of the Borrowers or
any of their Restricted Subsidiaries is a party to any contract or agreement
that has or is expected, in the judgment of the Borrowers' officers, to have any
materially adverse effect on the business of any Borrower or any of their
Restricted Subsidiaries either individually or taken as a whole.
8.9. Compliance with Other Instruments, Laws, Etc. None of the
--------------------------------------------
Borrowers or any of their Restricted Subsidiaries is in violation of any
provision of its charter documents, bylaws, or any agreement or instrument to
which it may be subject or by which it or any of its properties may be bound or
any decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that could result in the imposition of substantial
penalties or materially and adversely affect the financial condition, properties
or business of any of the Borrowers or any of their Restricted Subsidiaries
either individually or taken as whole.
8.10. Tax Status. The Borrowers and their Restricted Subsidiaries (i)
----------
have made, filed or duly extended all federal, provincial, state and income and
all other tax returns, reports and declarations required by any jurisdiction to
which any of them is subject, (ii) have paid all taxes and other governmental
assessments and charges shown or determined to be due on such returns, reports
and declarations and all estimated taxes in connection with any extensions,
except those being contested in good faith and by appropriate proceedings and
(iii) have set aside on their books provisions reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes
<PAGE>
-100-
in any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Borrowers know of no basis for any such
claim.
8.11. No Event of Default. No Default or Event of Default has occurred
-------------------
and is continuing.
8.12. Holding Company and Investment Company Acts. None the Borrowers
-------------------------------------------
or any of their Restricted Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935; nor is
it an "investment company", or an "affiliated company" or a "principal
underwriter" of an "investment company", as such terms are defined in the
Investment Company Act of 1940.
8.13. Absence of Financing Statements, Etc. Except with respect to
------------------------------------
Permitted Liens, there is no financing statement, security agreement,
registration, application for registration, chattel mortgage, hypothec, real
estate mortgage or other document filed or recorded with any filing records,
registry or other public office, that purports to cover, affect or give notice
of any present or possible future lien on, or security interest in, any a(S)ets
or property of any of the Borrowers or any of their Restricted Subsidiaries.
8.14. Certain Transactions. Except as set forth on Schedule 8.14 and
-------------------- -------- ----
except for arm's length transactions pursuant to which any of the Borrowers or
any of their Restricted Subsidiaries makes payments in the ordinary course of
business upon terms no less favorable than such Borrower or such Restricted
Subsidiary could obtain from third parties, none of the officers, directors, or
employees of any of the Borrowers or any of their Restricted Subsidiaries or
other Affiliates is presently a party to any transaction with any of the
Borrowers or any of their Restricted Subsidiaries (other than for services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the best knowledge of
such Person, any corporation, partnership, trust or other entity in which any
officer, director, other Affiliates or any such employee has a substantial
interest or is an officer, director, trustee or partner.
8.15. Employee Benefit Plans.
----------------------
8.15.1. In General. Each Employee Benefit Plan has been
----------
maintained and operated in compliance in all material respects with the
provisions of ERISA and, to the extent applicable, the Code, including
but not limited to the provisions thereunder respecting prohibited
transactions. Except as set forth in Schedule 8.15, the US Borrower has
-------------
heretofore delivered to the Administrative Agent the most recently
completed annual report, Form 5500, with all required attachments, and
<PAGE>
-101-
actuarial statement required to be submitted under ss.103(d) of ERISA,
with respect to each Guaranteed Pension Plan.
8.15.2. Terminability of Welfare Plans. Under each Employee
------------------------------
Benefit Plan which is an employee welfare benefit plan within the
meaning of (S)3(1) or (S)3(2)(B) of ERISA, no benefits are due unless
the event giving rise to the benefit entitlement occurs prior to plan
termination (except as required by Title I, Part 6 of ERISA). The US
Borrower or an ERISA Affiliate, as appropriate, may terminate each such
Plan at any time (or at any time subsequent to the expiration of any
applicable bargaining agreement) in the discretion of US Borrower or
such ERISA Affiliate without liability to any Person.
8.15.3. Guaranteed Pension Plans. Except as set forth in
------------------------
Schedule 8.15, each contribution required to be made to a Guaranteed
-------- ----
Pension Plan, whether required to be made to avoid the incurrence of an
accumulated funding deficiency, the notice or lien provisions of
(S)302(f) of ERISA, or otherwise, has been timely made. No waiver of an
accumulated funding deficiency or extension of amortization periods has
been received with respect to any Guaranteed Pension Plan. No liability
to the PBGC (other than required insurance premiums, all of which have
been paid) has been incurred by any of the Borrowers or any ERISA
Affiliate with respect to any Guaranteed Pension Plan and there has not
been any ERISA Reportable Event, or any other event or condition which
presents a material risk of termination of any Guaranteed Pension Plan
by the PBGC. Based on the latest valuation of each Guaranteed Pension
Plan (which in each case occurred within twelve months of the date of
this representation), and on the actuarial methods and assumptions
employed for that valuation, or where the initial valuation of any
Guaranteed Pension Plan has not been completed, based on the US
Borrower's reasonable estimate of the benefit liabilities and assets of
such Plan, the aggregate benefit liabilities of all such Guaranteed
Pension Plans within the meaning of (S)4001 of ERISA did not exceed the
aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities,
by more than $200,000.
8.15.4. Multiemployer Plans. Neither the US Borrower nor any
-------------------
ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under
(S)4201 of ERISA or as a result of a sale of assets described in
(S)4204 of ERISA. Neither the US Borrower nor any ERISA Affiliate has
been notified that any Multiemployer Plan is in reorganization or
insolvent under and within the meaning of (S)4241 or (S)4245 of ERISA
or that any Multiemployer Plan intends to terminate or has been
terminated under (S)4041A of ERISA.
<PAGE>
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8.15.5. Canadian Plans. All contributions or premiums to be
--------------
paid by the Canadian Borrower and the Canadian Guarantors under the
terms of each Canadian Plan or by applicable law have been made in a
timely fashion in accordance with applicable law and the terms of the
Canadian Plans, and each Canadian Plan has been registered,
administered, and invested in accordance with its terms and applicable
law. The Canadian Borrower and the Canadian Guarantors may unilaterally
amend or terminate, in whole or in part, each of their Canadian Plans.
Except as set forth in Schedule 8.15, as of the date hereof, neither
-------------
the aggregate going concern unfunded liability nor the aggregate
solvency deficiency in respect of all the Canadian Plans which are
funded plans, determined pursuant to the actuarial assumptions and
methodology utilized in the most recent actuarial valuations therefor,
exceeds the Canadian Dollar Equivalent of $200,000. The Canadian
Borrower and Canadian Guarantors have delivered to the Administrative
Agent such valuations for each funded Canadian Plan.
8.15.6. Mexican Plans. Neither the Mexican Borrower nor any of
-------------
the Mexican Guarantors has any employee benefit plans, welfare plans or
pension plans.
8.16. Use of Proceeds; Regulations U and X. The proceeds of the Loans
------------------------------------
shall be used by (a) the US Borrower solely to restate and refinance the Loans
under the Prior Credit Agreement, for Permitted Acquisitions and for working
capital and general corporate purposes, (b) the Australian Borrower to refinance
its existing and for working capital and general corporate purposes, (c) the
Canadian Borrower to refinance existing Indebtedness and for working capital and
general corporate purposes, and (d) the Mexican Borrower to finance the Mexican
Acquisition and for working capital and general corporate purposes. The US
Borrower will obtain Letters of Credit solely for Permitted Acquisitions and for
working capital and general corporate purposes. No portion of any Loan is to be
used, and no portion of any Letter of Credit is to be obtained, for the purpose
of purchasing or carrying any "margin security" or "margin stock" as such terms
are used in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
8.17. Environmental Compliance. Each of the Borrowers and their
------------------------
Restricted Subsidiaries have taken all reasonable steps to investigate the past
and present condition and usage of the Real Estate and the operations conducted
thereon and, based upon such reasonable investigation, has determined that:
(a) except as set forth on Schedule 8.17 attached hereto, none
-------- ----
of the Borrowers, none of their Restricted Subsidiaries nor any operator
of the Real Estate or any operations thereon is in violation, or alleged
violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery
Act ("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act
<PAGE>
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of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Federal Clean Water Act, the
----
Federal Clean Air Act, the Toxic Substances Control Act, or any
Canadian, Mexican, federal, provincial, state or local statute,
regulation, ordinance, order or decree relating to health, safety or the
environment or otherwise relating to land use or occupation of land or
buildings, heritage preservation, protection or conservation of natural
or cultural sources, pollution or contamination of air, water or soil,
waste or chemical disposal, toxic, hazardous, poisonous, or dangerous
substances or noise or odor (hereinafter "Environmental Laws"), which
------------- ----
violation could have a material adverse effect on the environment or the
business, assets or financial condition of the Borrowers or any of their
Restricted Subsidiaries;
(b) except as set forth in Schedule 8.17 attached hereto, none
-------- ----
of the Borrowers nor any of their Restricted Subsidiaries has received
notice from any third party including, without limitation, any Canadian,
Mexican, federal, provincial, state or local governmental authority, (i)
that any one of them has been identified by the United States
Environmental Protection Agency ("EPA") as a potentially responsible
---
party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 300 Appendix B; (ii) that any hazardous
waste, as defined by 42 U.S.C. (S)6903(5) or by any applicable
Environmental Laws, any hazardous substances as defined by 42 U.S.C.
(S)9601(14) or by any applicable Environmental Laws, any pollutant or
contaminant as defined by 42 U.S.C. (S)9601(33) or by any applicable
Environmental Laws and any toxic substances, oil or hazardous materials
or other chemicals or substances regulated by any Environmental Laws
("Hazardous Substances") which any one of them has generated,
--------- ----------
transported or disposed of has been found at any site at which a
federal, provincial, state or local agency or other third party has
conducted or has ordered that the Borrowers or any of their Restricted
Subsidiaries conduct a remedial investigation, removal or other response
action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, or
legal or administrative proceeding (in each case, contingent or
otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with
the release of Hazardous Substances;
(c) except as set forth on Schedule 8.17 attached hereto: (i)
-------- ----
to the best knowledge of any of the Borrowers, no portion of the Real
Estate has been used for the handling, processing, storage or disposal
of Hazardous Substances which would have a material adverse effect on
the value of the Real Estate which in turn would have a material adverse
effect on the business, assets or financial condition of any of the
Borrowers or any of their Restricted Subsidiaries except in accordance
with applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances which would have
a material adverse effect on the value of the Real Estate which in
<PAGE>
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turn would have a material adverse effect on the business, assets or
financial condition of any Borrower or any of their Restricted
Subsidiaries is located on any portion of the Real Estate except in
accordance with applicable Environmental Laws; (ii) in the course of any
activities conducted by any Borrower, its Restricted Subsidiaries or
operators of its properties, no Hazardous Substances have been generated
or are being used on the Real Estate except in accordance with
applicable Environmental Laws; (iii) to the best knowledge of any
Borrower, there have been no releases (i.e. any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping) or threatened
releases of Hazardous Substances on, upon, into or from the properties
of any Borrower or its Restricted Subsidiaries, which releases would
have a material adverse effect on the value of any of the Real Estate or
adjacent properties or the environment; (iv) to the best knowledge of
any Borrower, there have been no releases on, upon, from or into any
real property in the vicinity of any of the Real Estate which, through
soil or groundwater contamination, may have come to be located on, and
which would have a material adverse effect on the value of, the Real
Estate; and (v) in addition, to the best knowledge of any Borrower, any
Hazardous Substances that have been generated on any of the Real Estate
after the effective date of RCRA and applicable regulations have been
transported offsite only by carriers having an identification number
issued by the EPA and with respect to Real Estate located in Canada, an
identification number issued by any Canadian federal or provincial
agency, treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental
Laws, which transporters and facilities have been and are, to the best
knowledge of each Borrower, operating in compliance with such permits
and applicable Environmental Laws; and
(d) except as listed on Schedule 8.17 hereto, none of the
-------- ----
Borrowers and their Restricted Subsidiaries, nor any of the Real Estate
is subject to any applicable Environmental Law requiring the performance
of Hazardous Substances site assessments, or the removal or remediation
of Hazardous Substances, or the giving of notice to any governmental
agency or the recording or delivery to other Persons of an environmental
disclosure document or statement by virtue of the transactions set forth
herein and contemplated hereby, or as a condition to the effectiveness
of any other transactions contemplated hereby.
8.18. Subsidiaries, Etc. Each of the Borrowers' direct and indirect
-----------------
Subsidiaries are as set forth on Schedule 8.18 hereof and each Borrower holds
-------- ----
the ownership interests in each direct and indirect Subsidiary described on
Schedule 8.18. None of the Subsidiaries of the Borrowers has any other
- -------- ----
Subsidiaries except as set forth on Schedule 8.18 hereto. None of the Borrowers
-------- ----
or any of their Subsidiaries is engaged in any joint venture or partnership with
any other Person.
<PAGE>
-105-
8.19. Capitalization.
--------------
(a) The US Borrower is the record and beneficial owner of all of
the issued and outstanding capital stock of each of the US Restricted
Subsidiaries and GWAI, GWIC, G.W. Mexico and CFCM, free and clear of
all liens, other than Permitted Liens, except that (i) the US Borrower
owns only 454 shares of the 458 shares of the issued and outstanding
capital stock of Dansville, (ii) the US Borrower directly or
indirectly, owns only 95% of GRO's outstanding equity voting interests,
(iii) the US Borrower owns only 99.9% of the issued and outstanding
capital stock of CFCM and 99% of the issued and outstanding shares of
G.W. Mexico, and (iv) Rail Link, Inc. is the owner of all the issued
and outstanding shares of Carolina Coastal Railway, Inc., Commonwealth
Railway, Inc. and Talleyrand Terminal Railway Company, Inc. All shares
of such capital stock have been validly issued, are outstanding, fully
paid and nonassessable and no options, warrants or other rights to
subscribe to additional shares of the capital stock of each of the US
Restricted Subsidiaries, GWAI, GWIC, G.W. Mexico or CFCM have been
granted or exist.
(b) GWAI is the record and beneficial owner of all of the issued
and outstanding capital stock of ASR and each of the Australian
Guarantors (other than SA Rail), free and clear of all liens, other
than Permitted Liens. All shares of such capital stock have been
validly issued, are outstanding, fully paid and nonassessable and no
options, warrants or other rights to subscribe to additional shares of
the capital stock of ASR or each of the Australian Guarantors (other
than SA Rail), have been granted or exist.
(c) ASR is the record and beneficial owner of all of the issued
and outstanding capital stock of SA Rail, free and clear of all liens,
other than Permitted Liens. All shares of such capital stock have been
validly issued, are outstanding, fully paid and nonassessable and no
options, warrants or other rights to subscribe to additional shares of
the capital stock of SA Rail Pty Limited have been granted or exist.
(d) GRO is the record and beneficial owner of all of the issued
and outstanding capital stock of each of the Canadian Borrower and the
other Canadian Guarantors (other than Mirabel and Rail-One), free and
clear of all liens, other than Permitted Liens. GWIC is the record and
beneficial owner of all of the issued and outstanding capital stock of
Mirabel and Rail-One, free and clear of all liens other than Permitted
Liens. All shares of such capital stock have been validly issued, are
outstanding, fully paid and nonassessable and no options, warrants or
other rights to subscribe to additional shares of the capital stock of
the Canadian Borrower or the other Canadian Guarantors have been
granted or exist.
<PAGE>
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8.20. Fiscal Year. Each of the Borrowers and their Restricted
-----------
Subsidiaries has a fiscal year which is twelve calendar months ending on
December 31 of each year.
8.21. Operation of Railroads. Each of the Borrowers is a rail carrier
----------------------
or is primarily engaged in the business of providing management and
administrative services to rail carriers and other entities in the
transportation business, and holding stock of its Restricted Subsidiaries. Each
of the US Borrower's Restricted Subsidiaries (other than Leasing, RSI, Dayton,
GWIC, Management, Investors and G.W. Mexico) are primarily engaged in the
railroad business in the states set forth below their respective names on
Schedule 8.21 attached hereto. RSI and Management provide management and support
functions for certain of the other Restricted Subsidiaries of the US Borrower.
Dayton and Investors are holding companies. Leasing is primarily engaged in the
business of acquiring, rebuilding, leasing and selling locomotives and rolling
stock, and in other activities related to rail transportation. G.W. Mexico
manages the operations of an unaffiliated railroad. Each of the US Borrower's
Restricted Subsidiaries (other than Leasing, RSI, Dayton, Management, Investors
and G.W. Mexico) operates railroads in accordance with applicable laws.
8.22. Disclosure. No representation or warranty made by any of the
----------
Borrowers or any of their Restricted Subsidiaries in any Loan Document to which
it is a party and no document or information furnished to the Agents or the
Banks by or on behalf of or at the request of any of the Borrowers or any of
their Restricted Subsidiaries in connection with any of the transactions
contemplated by the Loan Documents contains any untrue statement of a material
fact or omits to state any material fact necessary in order to make the
statements contained therein not misleading in light of the circumstances in
which they are made.
8.23. No Withholding. None of the Borrowers are required by the laws of
--------------
any jurisdiction to make any deduction or withholding of any nature whatsoever
from any payment to be made by way of the Borrowers hereunder other than in
respect of payments of interest on the Mexican Loans, or unless the amount and
likelihood such deductions or withholdings are not, in the Administrative
Agent's reasonable discretion, material. Neither this Credit Agreement nor any
of the other Loan Documents is subject to any registration or stamp tax or any
other similar or like taxes payable in any jurisdiction.
8.24. Year 2000 Problem. The Borrowers and their Restricted
-----------------
Subsidiaries have (i) reviewed the areas within their businesses and operations
which could be adversely affected by failure to become "Year 2000 Compliant"
(i.e. that computer applications, imbedded microchips and other systems used by
the Borrowers or any of their Restricted Subsidiaries, will be able properly to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999), (ii) developed a detailed plan
and timetable to become Year 2000 Compliant in a timely manner, and (iii)
committed adequate resources to support the Year 2000 plan of the Borrowers
<PAGE>
-107-
and their Restricted Subsidiaries. Based upon such review, the Borrowers
reasonably believe that the Borrowers and their Restricted Subsidiaries will
become "Year 2000 Compliant" in a timely manner except to the extent that
failure to do so will not have any materially adverse effect on the business or
financial condition of the Borrowers or any of their Restricted Subsidiaries,
either individually or taken as a whole.
9. AFFIRMATIVE COVENANTS OF THE BORROWERS.
--------------------------------------
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or the Issuing Bank has any obligation
to issue, extend or renew any Letters of Credit:
9.1. Punctual Payment. Each of the Borrowers will duly and punctually
----------------
pay or cause to be paid the principal and interest on the Loans, all
Reimbursement Obligations, Letter of Credit Fees, Commitment Fees, Agents' Fees
and all other amounts provided for in this Credit Agreement and the other Loan
Documents to which such Borrower or any of its Restricted Subsidiaries is a
party, all in accordance with the terms of this Credit Agreement and such other
Loan Documents.
9.2. Maintenance of Office.
---------------------
(a) The US Borrower and the US Restricted Subsidiaries will
maintain their chief executive office at 71 Lewis Street, Greenwich,
CT, or at such other place in the United States of America as the US
Borrower shall designate, upon thirty (30) days prior written notice to
the Administrative Agent, where notices, presentations and demands to
or upon the US Borrower in respect of the Loan Documents to which the
US Borrower is a party may be given or made.
(b) The Australian Borrower and the Australian Guarantors will
maintain their registered office at 320 Churchill Road, Kilburn, South
Australia 5084, or at such other place in Australia as the Australian
Borrower shall designate, upon thirty (30) days prior written notice to
the Australian Agent and the Administrative Agent, where notices,
presentations and demands to or upon the Australian Borrower in respect
of the Loan Documents to which the Australian Borrower is a party may
be given or made.
(c) The Canadian Borrower and each of the Canadian Guarantors
(other than Huron) will maintain their registered office at 6650
Durocher, Building No. 1, Outremont, Quebec H2B 3Z3, and Huron will
maintain its registered office at 30 Oakland Avenue, Sault Ste.-Marie,
Ontario, P6A 2T3, or at such other places in Canada as the Canadian
Borrower shall designate, upon thirty (30) days prior written notice to
the Administrative Agent, where notices, presentations and demands to
or upon the Canadian Borrower in respect of the Loan
<PAGE>
-108-
Documents to which the Canadian Borrower are party may be given or
made.
(d) The Mexican Borrower and each of the Mexican Guarantors will
maintain their registered office at Carretera Picacho-Ajusco 130-404,
Colonia Jardines en la Montana 14210, Mexico City, D.F., Mexico or at
such other place in Mexico as the Mexican Borrower shall designate,
upon thirty (30) days prior written notice to the Administrative Agent,
where notices, presentations and demands to or upon the Mexican
Borrower in respect of the Loan Documents to which the Mexican Borrower
is a party may be given or made.
9.3. Records and Accounts. Each Borrower will (i) keep, and cause each
--------------------
of its Restricted Subsidiaries to keep, true and accurate records and books of
account in which full, true and correct entries will be made in accordance with
generally accepted accounting principles and (ii) maintain adequate accounts and
reserves for all taxes (including income taxes), depreciation, depletion,
obsolescence and amortization of its properties and the properties of its
Restricted Subsidiaries, contingencies, and other reserves.
9.4. Financial Statements, Certificates and Information. The Borrowers
--------------------------------------------------
will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of the Borrowers,
the consolidated balance sheets for the Borrowers and their Restricted
Subsidiaries and the consolidating balance sheets of the Audited
Companies, in each case as at the end of such year, and the related
consolidated statements of income and cash flow for the Borrowers and
their Restricted Subsidiaries for the period then ended, and the
consolidating statements of income and cash flow for the Audited
Companies for the period then ended, each setting forth in comparative
form the figures for the previous fiscal year, and all such
consolidated and consolidating statements to be in reasonable detail
and prepared in accordance with generally accepted accounting
principles, and all such consolidated and the consolidating statements
for GWI to be certified without qualification by Arthur Andersen L.L.P.
or by other independent certified public accountants satisfactory to
the Administrative Agent, together with a written statement from such
accountants to the effect that they have read a copy of this Credit
Agreement, and that, in making the examination necessary to said
certification, they have obtained no knowledge of any Default or Event
of Default, or, if such accountants shall have obtained knowledge of
any then existing Default or Event of Default they shall disclose in
such statement any such Default or Event of Default; provided that such
--------
accountants shall not be liable to the Banks for failure to obtain
knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three fiscal
quarters
<PAGE>
-109-
of the Borrowers and not later than sixty (60) days after the end of
the fourth fiscal quarter of the Borrowers, copies of the unaudited
consolidated balance sheets of the Borrowers and their Restricted
Subsidiaries and the consolidating balance sheets of the Audited
Companies, in each case as at the end of such quarter, the related
consolidated statements of income and cash flow for the Borrowers and
their Restricted Subsidiaries for the portion of the Borrowers' fiscal
year then elapsed, and the consolidating statements of income and cash
flow for the Audited Companies for the portion of the Borrower's fiscal
year then elapsed, all in reasonable detail and prepared in accordance
with generally accepted accounting principles, together with a
certification by the principal financial or accounting officers of the
Borrowers that the information contained in such financial statements
fairly present the financial position of the Borrowers and their
Restricted Subsidiaries on the date thereof (subject to year-end
adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsection (a) and subsection (b) above, a statement
certified by the principal financial or accounting officers of the
Borrowers in substantially the form of Exhibit D hereto (a "Compliance
--------- ----------
Certificate") and setting forth in reasonable detail computations
-----------
evidencing compliance with (S)4.2.2 and the covenants contained in
(S)11 and, in each case, (if applicable) reconciliations to reflect
changes in generally accepted accounting principles since the Balance
Sheet Date;
(d) contemporaneously with the filing or mailing thereof, copies
of all material of a financial nature (i) filed with the Securities and
Exchange Commission or (ii) sent to the stockholders of the Borrowers;
(e) no later than January 31 of each fiscal year of the
Borrowers, the annual budgets of the Borrowers and their Restricted
Subsidiaries, including projected consolidated balance sheets of the
Borrowers and their Restricted Subsidiaries and consolidating balance
sheets of the Audited Companies for the end of such fiscal year, and
consolidated statements of income and statements of cash flow of the
Borrowers and their Restricted Subsidiaries and consolidating
statements of income and statements of cash flow of the Audited
Companies for such fiscal year; and
(f) from time to time such other financial data and information
(including accountants' management letters) as the Agents or any Bank
may reasonably request.
9.5. Notices.
-------
9.5.1. Defaults. Each Borrower will promptly notify the Agents
--------
and each of the Banks in writing of the occurrence of any Default or
Event of Default of which they become aware. If any Person shall give
any notice or take any other action in respect of a claimed default
<PAGE>
-110-
(whether or not constituting an Event of Default) under this Credit
Agreement or any other note, evidence of indebtedness, indenture or
other obligation to which or with respect to which any of the Borrowers
or any of their Restricted Subsidiaries are parties or obligors,
whether as principal, guarantor, surety or otherwise, such Borrower
shall forthwith give written notice thereof to the Administrative Agent
and each of the Banks, describing the notice or action and the nature
of the claimed default.
9.5.2. Environmental Events. Each Borrower will within three
--------------------
(3) days of becoming aware thereof, give notice to the Administrative
Agent and each of the Banks (a) of any violation of any Environmental
Law that any of the Borrowers or any of their Restricted Subsidiaries
reports in writing or is reportable by such Person in writing (or for
which any written report supplemental to any oral report is made) to
any federal, provincial, state or local environmental agency and (b)
upon becoming aware thereof, of any inquiry, proceeding, investigation,
or other action, including a notice from any agency of potential
environmental liability, of any federal, provincial, state or local
environmental agency or board, that has the potential to materially
affect the assets, liabilities, financial conditions or operations of
any of the Borrowers or any of their Restricted Subsidiaries.
9.5.3. Notice of Litigation and Judgments. Each Borrower will,
----------------------------------
and will cause each of its Restricted Subsidiaries to, give notice to
the Administrative Agent and each of the Banks in writing within
fifteen (15) days of becoming aware of any litigation or proceedings
threatened in writing or any pending litigation and proceedings
affecting any of the Borrowers or any of their Restricted Subsidiaries
or to which any of the Borrowers or any of their Restricted
Subsidiaries is or becomes a party involving an uninsured claim against
any of the Borrowers or any of their Restricted Subsidiaries that could
reasonably be expected to have a materially adverse effect on such
Borrower and its Restricted Subsidiaries taken as a whole and stating
the nature and status of such litigation or proceedings. Each Borrower
will, and will cause each of their Restricted Subsidiaries to, give
notice to the Administrative Agent and each of the Banks, in writing,
in form and detail satisfactory to the Administrative Agent, within ten
(10) days of any judgment not covered by insurance, final or otherwise,
against any of the Borrowers or any of their Restricted Subsidiaries in
an amount in excess of $500,000.
9.5.4. Notification of Derailments. Each Borrower will, and
---------------------------
will cause each of its Restricted Subsidiaries to, give notice to the
Administrative Agent and each of the Banks in writing within three (3)
days of becoming aware thereof of any derailments or other types of
accidents which result (or could result) in the incurrence of costs by
the Borrowers and their Restricted Subsidiaries reasonably estimated to
be or exceed $1,000,000 and which could reasonably be expected to have
a material adverse effect on the operations of any of the Borrowers or
any
<PAGE>
-111-
of their Restricted Subsidiaries. The US Borrower shall deliver to the
Administrative Agent and each of the US Banks all reports filed with the
FRA regarding any occurrence referred to in this (S)9.5.4. The Australian
Borrower shall deliver to the Australian Agent, the Administrative Agent
and each of the Australian Banks, the Canadian Borrower shall deliver to
the Administrative Agent and each of the US Banks and the Mexican Borrower
shall deliver to the Administrative Agent and each of the US Banks, all
reports filed with relevant governmental authorities to which derailments
or other types of accident relating to railway operations are obliged to be
reported.
9.6. Corporate Existence; Maintenance of Properties. Each Borrower will
----------------------------------------------
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, rights and franchises and those of its
Restricted Subsidiaries and will not, and will not cause or permit any of its
Restricted Subsidiaries to, convert to a limited liability company or a limited
liability partnership. Each Borrower (a) will cause all of its properties and
those of its Restricted Subsidiaries used or useful in the conduct of its
business or the business of their Restricted Subsidiaries to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment, (b) will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
each Borrower may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, and (c)
will, and will cause each of its Restricted Subsidiaries to, continue to engage
primarily in the businesses now conducted by them and in related businesses;
provided that nothing in this (S)9.6 shall prevent any of the Borrowers from
- --------
discontinuing or reducing the level of the operation or maintenance of any of
its properties or any of those of its Restricted Subsidiaries if such
discontinuance is, in the reasonable judgment of such Borrower, desirable in the
conduct of its or their business and that do not in the aggregate materially
adversely affect the business of the Borrowers and their Restricted Subsidiaries
on a consolidated basis. Specifically, but not in limitation of the foregoing,
the US Borrower and each of its US Restricted Subsidiaries will maintain such an
appropriate FRA Class rating on its railroad lines as is reasonable and prudent
in light of all the relevant facts and circumstances.
9.7. Insurance. Each Borrower will, and will cause each of its Restricted
---------
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to their properties and business against such casualties
and contingencies as shall be in accordance with the general practices of
businesses engaged in similar activities in similar geographic areas and in
amounts, containing such terms, in such forms and for such periods as described
on Schedule 9.7 hereto and as may be reasonable and prudent.
------------
9.8. Taxes. Each Borrower will, and will cause each of its Restricted
-----
Subsidiaries to, duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other
governmental charges imposed upon it and its real properties, sales and
<PAGE>
-112-
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its property; provided that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if such Borrower or such Restricted Subsidiary shall have set aside on its
books adequate reserves with respect thereto; and provided further that each
Borrower and each of their Restricted Subsidiaries will pay all such taxes,
assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security therefor.
9.9. Inspection of Properties and Books, Etc.
----------------------------------------
9.9.1. General. Each Borrower shall permit the Banks, through the
-------
Administrative Agent or any of the Banks' other designated representatives,
to visit and inspect any of the properties of the Borrowers or any of their
Restricted Subsidiaries, to examine the books of account of the Borrowers
and their Restricted Subsidiaries (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the
Borrowers and their Restricted Subsidiaries with, and to be advised as to
the same by, their officers, all at such reasonable times and intervals as
the Administrative Agent or any Bank may reasonably request.
9.9.2. Communications with Accountants. The Borrowers authorize the
-------------------------------
Administrative Agent and, if accompanied by the Administrative Agent, the
Banks, to communicate directly with the Borrowers' independent certified
public accountants and authorize such accountants to disclose to the
Administrative Agent and the Banks any and all financial statements and
other supporting financial documents and schedules including copies of any
management letter with respect to the business, financial condition and
other affairs of the Borrowers or any of their Restricted Subsidiaries. At
the request of the Administrative Agent, the Borrowers shall deliver a
letter addressed to such accountants instructing them to comply with the
provisions of this (S)9.9.2.
9.10. Compliance with Laws, Contracts, Licenses, and Permits. Each Borrower
------------------------------------------------------
will, and will cause each of its Restricted Subsidiaries to, comply with (a) the
applicable laws and regulations wherever their business is conducted, including
all Environmental Laws, (b) the provisions of its charter documents and by-laws,
(c) all material agreements and instruments by which they or any of their
properties may be bound and (d) all applicable decrees, orders, and judgments.
If any authorization, consent, approval, permit or license from any officer,
agency or instrumentality of any government shall become necessary or required
in order that the Borrowers or any of their Restricted Subsidiaries may fulfill
any of their obligations hereunder or any of the other Loan Documents to which
such Borrower or such Restricted Subsidiary is a party, such Borrower will, or
(as the case may be) will cause such Restricted Subsidiary to, immediately take
or cause to be taken all
<PAGE>
-113-
reasonable steps within the power of such Borrower or such Restricted Subsidiary
to obtain such authorization, consent, approval, permit or license and furnish
the Administrative Agent and the Banks with evidence thereof.
9.11. Employee Benefit Plans. The US Borrower will (i) within three (3)
----------------------
days of receipt of a written request by the Administrative Agent, furnish to the
Administrative Agent a copy of the most recent actuarial statement required to
be submitted under (S)103(d) of ERISA and Annual Report, Form 5500, with all
required attachments, in respect of each Guaranteed Pension Plan and (ii) within
three (3) days of receipt or dispatch, furnish to the Administrative Agent any
notice, report or demand sent or received in respect of a Guaranteed Pension
Plan under (S)(S)302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or
in respect of a Multiemployer Plan, under (S)(S)4041A, 4202, 4219, 4242, or 4245
of ERISA. The Canadian Borrower and the Canadian Guarantors will (i) within
three (3) days of receipt of a written request by the Administrative Agent,
furnish to the Administrative Agent a copy of the most recent actuarial
valuation submitted to the relevant authorities in respect of each funded
Canadian Plan and (ii) within three (3) days of receipt or dispatch, furnish to
the Administrative Agent any material correspondence from or to the relevant
authorities or any other person in respect of any Canadian Plan. The Mexican
Borrower and each of the Mexican Guarantors will within three (3) days of
establishment of any employee benefit plans or following receipt of a written
request by the Administrative Agent, furnish to the Administrative Agent all
documents relating to any such employee benefit plans.
9.12. Use of Proceeds. Each Borrower will use the proceeds of the Loans and
---------------
the US Borrower will obtain Letters of Credit solely for the purposes set forth
in (S)8.16 hereof.
9.13. Further Assurances. Each Borrower will, and will cause each of its
------------------
Restricted Subsidiaries to, cooperate with the Banks and the Agents and execute
such further instruments and documents as the Banks or the Agents shall
reasonably request to carry out to their satisfaction the transactions
contemplated by this Credit Agreement and the other Loan Documents.
9.14. Additional Subsidiaries. The Borrowers shall cause each Restricted
-----------------------
Subsidiary created or acquired after the Closing Date to execute and deliver to
the Administrative Agent for the benefit of the Banks, the Issuing Bank (in the
case of the US Restricted Subsidiaries) and the Agents, an Instrument of
Adherence (Guaranty), in substantially the form of Exhibit E hereto (an
---------
"Instrument of Adherence (Guaranty)"), whereby such Restricted Subsidiary
---------------------------------
becomes a party to the applicable Loan Documents, together with legal opinions
in form and substance satisfactory to the Administrative Agent to be delivered
to the Administrative Agent and the Banks opining as to the authorization,
validity and enforceability of such Guaranty, and as to such other matters as
the Administrative Agent may request. In addition, the Borrowers shall
immediately upon the acquisition or creation of any new Subsidiary, notify the
Banks thereof and provide the Administrative Agent and the Banks with an updated
Schedule 8.18 hereto to reflect the formation or
- -------------
<PAGE>
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acquisition of each new Subsidiary. The Borrowers shall inform the
Administrative Agent in writing within one (1) US Business Day of the delivery
of an updated Schedule 8.18 whether the newly formed or acquired Subsidiary is a
-------------
Restricted Subsidiary or an Unrestricted Subsidiary under this Credit Agreement,
provided that the acquisition of such Subsidiary is a Permitted Acquisition
- --------
under (S)10.3(i) and no Default or Event of Default exists or would be created
as a result thereof. Notwithstanding the other provisions of this (S)9.14, any
Restricted Subsidiary in which any of the Borrowers or any of the Restricted
Subsidiaries have collectively invested less than $100,000 and so long as such
Restricted Subsidiary shall not have (a) assets in excess of $100,000, (b)
annual revenue in excess of $100,000 or (c) liabilities in excess of $100,000,
such Restricted Subsidiary shall not be required to become a party to the
Guaranty. In the event that any Unrestricted Subsidiary's assets (other than
assets acquired solely with the proceeds of Investments permitted by (S)10.3(k))
ever have a fair market value in excess of $100,000, such Unrestricted
Subsidiary shall become a Restricted Subsidiary hereunder, the Borrowers shall
cause such Unrestricted Subsidiary to become a Guarantor hereunder and shall
cause such Unrestricted Subsidiary to comply with the provisions of this
(S)9.14.
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS.
-------------------------------------------
Each Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Issuing Bank has any obligations to
issue, extend or renew any Letters of Credit:
10.1. Restrictions on Indebtedness. The Borrowers will not, and will not
----------------------------
permit any of their Restricted Subsidiaries to, create, incur, assume, guarantee
or be or remain liable, contingently or otherwise, with respect to any
Indebtedness other than:
(a) Indebtedness to the Banks, the Issuing Bank and the Agents
arising under any of the Loan Documents;
(b) current liabilities of the Borrowers or their Restricted
Subsidiaries incurred in the ordinary course of business not incurred
through (i) the borrowing of money, or (ii) the obtaining of credit except
for credit on an open account basis customarily extended and in fact
extended in connection with normal purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be required to be made
in accordance with the provisions of (S)9.8;
(d) Indebtedness in respect of judgments or awards that have been
in force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which any
<PAGE>
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Borrower or any of their Restricted Subsidiaries shall at the time in good
faith be prosecuting an appeal or proceedings for review and in respect of
which a stay of execution shall have been obtained pending such appeal or
review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;
(f) Indebtedness in respect of the CSX Remaining Debt, provided
that the aggregate principal amount of such Indebtedness shall not exceed
$8,922,105;
(g) Indebtedness of any of the Borrowers or any of their Restricted
Subsidiaries to any of the Borrowers or any of their other Restricted
Subsidiaries consisting of rights of reimbursement, contribution,
subrogation and the like in connection with the joint and several
obligations of the Borrowers and their Restricted Subsidiaries under the
Loan Documents;
(h) Indebtedness incurred (other than under this Credit Agreement)
or assumed in connection with the acquisition after the date hereof of any
real or personal property by the Borrowers or their Restricted Subsidiaries
(including Indebtedness in respect of Capitalized Leases), provided that
--------
the aggregate principal amount of such Indebtedness of (i) the US Borrower
and its Restricted Subsidiaries shall not exceed the aggregate amount of
$12,000,000 at any one time, (ii) the Australian Borrower and the
Australian Guarantors shall not exceed the aggregate Dollar Equivalent
amount of $4,000,000 at any time, (iii) GRO and its Restricted Subsidiaries
shall not exceed the aggregate Dollar Equivalent amount of $2,500,000 at
any one time, and (iv) the Mexican Borrower and the Mexican Guarantors
shall not exceed the aggregate Dollar Equivalent amount of $100,000 at any
one time;
(i) Indebtedness existing on the date hereof and listed and
described on Schedule 10.1 hereto;
-------------
(j) Indebtedness of (i) the US Borrower to any of the US Guarantors
or any of the US Guarantors to the US Borrower or any of the other US
Guarantors, (ii) the Australian Borrower to any of the Australian
Guarantors or any of the Australian Guarantors to the Australian Borrower
or any of the other Australian Guarantors, (iii) the Canadian Borrower to
any of the Canadian Guarantors or any of the Canadian Guarantors to the
Canadian Borrower or any of the other Canadian Guarantors or (iv) the
Mexican Borrower to any of the Mexican Guarantors or any of the Mexican
Guarantors to the Mexican Borrower or any other Mexican Guarantor;
<PAGE>
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(k) Indebtedness of the Borrowers with respect to Rate Hedging
Agreements provided that such Rate Hedging Agreements are in form and
--------
substance acceptable to the Administrative Agent;
(l) Indebtedness in respect of performance, surety, statutory,
insurance, appeal or similar bonds obtained in the ordinary course of
business;
(m) Indebtedness of the Borrowers and their Restricted Subsidiaries
in respect of operating leases;
(n) Indebtedness under the Willamette Valley Note not to exceed
$400,000 in principal amount outstanding at any time;
(o) Indebtedness the Borrowers or any of their Restricted
Subsidiaries in respect of guaranties of obligations in connection with
Permitted Acquisitions and other Investments permitted by (S)10.3(i) and
(k) and for the operation of any of their Restricted Subsidiaries (in each
case, to the extent the underlying Indebtedness with respect thereto is
otherwise permitted under this (S)10.1), not to exceed $10,000,000 in
aggregate for all such permitted at any time; and
(p) other Indebtedness not included in the foregoing provisions of
this (S)10.1 not to exceed $1,000,000 in the aggregate at any time
outstanding.
10.2. Restrictions on Liens. Each Borrower will not, and will not permit
---------------------
any of its Restricted Subsidiaries to, (i) create or incur or suffer to be
created or incurred or to exist any lien, encumbrance, mortgage, pledge,
hypothec, prior claim (within the meaning of the Civil Code of Quebec), charge,
restriction or other security interest of any kind upon any of their property or
assets of any character whether now owned or hereafter acquired, or upon the
income or profits therefrom; (ii) transfer any of such property or assets or the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (iii) acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; (iv) suffer to
exist for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it that if unpaid might by
law or upon bankruptcy or insolvency, or otherwise, be given any priority or
preference whatsoever over its general creditors; or (v) sell, assign, pledge or
otherwise transfer any accounts, contract rights, general intangibles, chattel
paper or instruments, with or without recourse; provided that such Borrower and
--------
any of its Restricted Subsidiaries may create or incur or suffer to be created
or incurred or to exist:
<PAGE>
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(a) liens in favor of the Administrative Agent or the Australian
Agent for the benefit of the Banks and the Agent under the Loan Documents;
(b) liens to secure taxes, assessments and other government charges
in respect of obligations not overdue or liens on properties to secure
claims for labor, material or supplies in respect of obligations not
overdue;
(c) deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations;
(d) liens on properties in respect of judgments or awards, the
Indebtedness with respect to which is permitted by (S)10.1(d);
(e) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties, in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue;
(f) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens under leases to which any of the Borrowers or any of their Restricted
Subsidiaries is a party, and other minor liens or encumbrances none of
which in the opinion of such Borrower interferes materially with the use of
the property affected in the ordinary conduct of the business of such
Borrower and its Restricted Subsidiaries, which defects do not individually
or in the aggregate have a materially adverse effect on the business, of
any of the Borrowers individually or of the Borrowers and their Restricted
Subsidiaries on a consolidated basis;
(g) liens existing on the date hereof and listed on Schedule 10.2
-------------
hereto;
(h) purchase money security interests in or purchase money mortgages
on real or personal property acquired after the date hereof to secure
purchase money Indebtedness of the type and amount permitted by (S)10.1(h),
incurred or assumed in connection with the acquisition of such property,
which security interests or mortgages cover only the real or personal
property so acquired;
(i) the CSX Mortgages and the CSX Security Agreements solely to the
extent that the CSX Remaining Debt is permitted under (S)10.1(f);
(j) liens consisting of deposits to secure Indebtedness permitted by
(S)10.1(l) hereof;
<PAGE>
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(k) liens on the rights of WPR under Section 14.05 of its lease with
Southern Pacific Transportation Company dated as of 12/30/92 to secure
Indebtedness permitted by (S)10.1(n) hereof;
(l) (i) liens on the equipment, fixtures and improvements of the US
Borrower and the US Restricted Subsidiaries placed in or upon the premises
leased pursuant to the Corpus Christi Lease, provided that the US Borrower
--------
or any US Restricted Subsidiary shall not make expenditures with respect to
such equipment, fixtures and improvements with respect to such premises in
excess of $300,000 and (ii) liens of the Port of Corpus Christi Authority
of Nueces County, Texas on the two locomotives owned by Rail Link, Inc. and
numbered as RLIX 547 and RLIX 475;
(m) liens on ASR's track infrastructure granted to the South
Australian Minister for Transport and Urban Planning, on the terms in
effect as of the Closing Date;
(n) liens on the capital stock of any Unrestricted Subsidiary so
long as such liens are otherwise non-recourse to the Borrowers and their
Restricted Subsidiaries; and
(o) other liens not included in the foregoing provisions of this
(S)10.2 securing Indebtedness permitted by (S)10.1(p) so long as the fair
market value of the assets encumbered by such liens does not exceed
$1,000,000 in the aggregate.
10.3. Restrictions on Investments. Each Borrower will not, and will not
---------------------------
permit its Restricted Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except the Borrowers and their Restricted
Subsidiaries may make or permit to exist or to remain outstanding Investments
in:
(a) marketable direct or guaranteed obligations of the United States
of America or the Commonwealth of Australia or Canada that mature within
one (1) year from the date of purchase by a Borrower;
(b) demand deposits, certificates of deposit, bankers acceptances
and time deposits of United States banks, Australia banks, Canada banks
having total assets in excess of $1,000,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated
and the ratings for which are not less than "P 1" if rated by Moody's
Investors Services, Inc., and not less than "A 1" if rated by Standard and
Poor's;
<PAGE>
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(d) Investments existing on the date hereof and listed on Schedule
--------
10.3 hereto;
----
(e) Investments with respect to Indebtedness permitted by (S)10.1(j)
so long as such entities remain Restricted Subsidiaries of a Borrower;
(f) Investments between (i) the US Borrower and any of (A) the US
Guarantors, (B) ASR (so long as it is the Australian Borrower), (C) Quebec
(so long as it remains the Canadian Borrower) and (D) CFCM (so long as it
remains the Mexican Borrower) or (ii) the Australian Borrower and any of
the Australian Guarantors or (iii) the Canadian Borrower and any of the
Canadian Guarantors or (iv) the Mexican Borrower and any of the Mexican
Guarantors;
(g) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business not to exceed $750,000 in the aggregate at any time
outstanding;
(h) Investments by any of the Borrowers or any of their Restricted
Subsidiaries consisting of rights of reimbursement, contribution,
subrogation and the like in connection with the joint and several
obligations of such Restricted Subsidiaries under the Loan Documents; and
(i) Other Investments constituting or made in connection with
acquisitions by the Borrowers or any Restricted Subsidiary of the Borrowers
(with the proceeds of a capital contribution from such Borrower or
otherwise) of any other Person, or of any business, division or operating
unit of any other Person (whether by way of a purchase of assets or capital
stock) (each such acquisition satisfying all the conditions and
requirements of this paragraph (i) being referred to herein as a "Permitted
Acquisition"); provided that:
(i) the aggregate Purchase Price for (A) any one Permitted
Acquisition (or group of related acquisitions) shall not exceed the
Dollar Equivalent of (x) $25,000,000, for any domestic Person or any
business, division or operating unit of any domestic Person or (y)
$10,000,000 for any business, division or operating unit of any non-
domestic Person which is (I) not domiciled in an Emerging Market or
(II) is domiciled in an Emerging Market acceptable to the Majority
Banks, and (B) all such Permitted Acquisitions shall not exceed the
Dollar Equivalent of $50,000,000 in any period of twelve consecutive
months;
(ii) such Borrower shall have demonstrated to the reasonable
satisfaction of the Administrative Agent (based on, among other
things, operating and financial projections and pro
---
<PAGE>
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forma financial statements delivered to the Administrative Agent and
-----
certified by the chief financial officer of such Borrower) that, after
giving pro-forma effect to the Permitted Acquisition and the
incurrence of any Indebtedness in connection therewith, all covenants
(including all covenants contained in (S)11) contained herein (1)
would have been satisfied on a Pro Forma Basis as at the end of and
for the most recent fiscal quarter, and (2) will be satisfied on a Pro
Forma Basis for the next four fiscal quarters ending after the date of
such Investment;
(iii) with respect to any such Permitted Acquisition:
(A) such Borrower shall have delivered to the
Administrative Agent and the Banks reasonable (and, in any event,
fifteen (15) days) prior written notice of such acquisition,
which notice shall provide the Administrative Agent with a
reasonably detailed description of the proposed acquisition, and
shall include true and complete copies of (to the extent
available at such time but in any event prior to the closing of
any such Permitted Acquisition) all instruments and agreements
executed or delivered or to be executed or delivered by such
Borrower or any of its Restricted Subsidiaries in connection with
such acquisition, all of which shall be reasonably satisfactory
in form and substance to the Administrative Agent;
(B) the business and assets so acquired shall be acquired
by such Borrower or any of its Restricted Subsidiaries free and
clear of all liens (other than Permitted Liens) and Indebtedness
(other than Indebtedness permitted by (S)10.1(h) or otherwise
consented to in writing by the Majority Banks) and the business
so acquired shall be substantially the same line of business as
that presently conducted by such Borrower and its Restricted
Subsidiaries or lines of business reasonably related thereto;
(C) no contingent obligations or liabilities will be
incurred or assumed in connection with such acquisition which
could reasonably be expected to have a material adverse effect on
the business or financial condition of the Borrowers and their
Restricted Subsidiaries, taken as a whole;
(D) in the case of any acquisition of capital stock, (x)
the acquired Person shall become a Restricted Subsidiary of a
Borrower (or of any existing Restricted Subsidiary of such
Borrower) or shall be merged with and into such Borrower or any
existing Restricted Subsidiary of such Borrower; and such
Borrower or the applicable
<PAGE>
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Restricted Subsidiary and such acquired Person shall
have become a Guarantor hereunder, shall have granted
a first priority perfected security interest or first
ranking hypothec over all of its assets and shall
have otherwise complied with all the applicable
provisions of (S)9.14 and (y) the board of directors
(or other applicable governing body) of the acquired
Person shall have approved such proposed acquisition;
(iv) no Default or Event of Default shall exist
immediately prior to such Permitted Acquisition or would
result from such Permitted Acquisition and provided further
that if such Permitted Acquisition would result in a change
in control of the acquired Person, such Investment shall
have been approved by the board of directors of such Person
prior to the making of such Investment;
(v) all computations required to satisfy the
conditions specified in subparagraphs (i), (ii) and (iv)
above shall be reasonably satisfactory to the Majority
Banks; and
(vi) with respect to any Permitted Acquisition, any
debt instruments or preferred stock evidencing, governing or
issued in connection with such Investment shall be
reasonably satisfactory to the Administrative Agent and
shall be permitted by this Credit Agreement;
(j) Investments consisting of deposits made in connection
with a Permitted Acquisition; and
(k) Investments not otherwise permitted by this (S)10.3
in an aggregate amount not to exceed the Dollar Equivalent of
$10,000,000 at any time, so long as no Default or Event of Default
shall have occurred and be continuing at the time such Investment is
made or would result therefrom.
10.4. Distributions and Restricted Payments. Each Borrower will
-------------------------------------
not, and will not permit any of its Restricted Subsidiaries to, make any
Restricted Payments, provided however that (a) the Borrowers' Restricted
-------- -------
Subsidiaries may make Distributions to a Borrower or other Restricted
Subsidiaries and (b) so long as no Default or Event of Default shall have
occurred and be continuing, and so long as none would result after giving effect
thereto, (i) the Borrowers may make Restricted Payments in an aggregate amount
for all such Restricted Payments by the Borrowers not to exceed, during any
period of four consecutive quarters, the lesser of (A) $5,000,000 or (B) fifty
percent (50%) of Consolidated Net Income for the period of four consecutive
fiscal quarters most recently ended, and (ii) the US Borrower may make
Restricted Payments in connection with the Stock Repurchase Agreement.
<PAGE>
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10.5. Merger, Acquisitions and Disposition of Assets.
-----------------------------------------------
10.5.1. Mergers and Acquisitions. Each Borrower will not, and
------------------------
will not permit any of its Restricted Subsidiaries to, become a party to
any merger, amalgamation or consolidation other than the merger,
amalgamation or consolidation of (i) a Restricted Subsidiary of the
Borrowers into any other Restricted Subsidiary, (ii) a Restricted
Subsidiary of any Borrower with and into such Borrower, or (iii) two or
more Restricted Subsidiaries of the Borrowers with each other. Each
Borrower will not, and will not permit any of its Restricted Subsidiaries
to, agree to or effect any asset acquisition or stock acquisition except
(a) the acquisition of assets in the ordinary course of business consistent
with past practices; (b) Capital Expenditures, provided that no Default or
--------
Event of Default has occurred and is continuing prior to or immediately
after giving effect to such Capital Expenditure; and (c) Permitted
Acquisitions.
10.5.2. Disposition of Assets. Each Borrower will not, and
---------------------
will not permit any of its Restricted Subsidiaries to, become a party to or
agree to or effect any disposition of assets or stock or other equity
interests, other than the disposition of assets in the ordinary course of
business, consistent with past practices, and sale-leasebacks to the extent
permitted under (S)10.6. Notwithstanding the foregoing, if no Default or
Event of Default exists or will occur as a result of such disposition or
sale, (a) the Borrowers and their Restricted Subsidiaries may lease, sell
or otherwise dispose of, for cash, assets (other than stock and other
equity interests); provided that the aggregate net book value (at the time
--------
of disposition thereof and after giving effect to the contemplated
disposition) of all such assets shall not exceed $10,000,000 during any
period of twelve consecutive months, provided that, for the 1999 fiscal
--------
year, in addition to the above permitted annual dispositions, the US
Borrower and its US Restricted Subsidiaries may sell or transfer certain
locomotives, with an aggregate net book value (at the time of disposition
thereof) of $7,800,000 (the "Locomotive Sale"); and (b) the Borrower and
---------- ----
their Restricted Subsidiaries may sell up to 49% of the capital stock of
Restricted Subsidiaries (i) with the prior written consent of the Majority
Banks so long as the purchaser or purchasers of such capital stock pledge
such capital stock to the Administrative Agent or Australian Agent, as the
case may be, as security for the applicable Obligations and (ii) with the
prior written consent of all of the Banks if such capital stock will not
thereafter be pledged by the purchaser or purchasers thereof. Any asset or
stock dispositions permitted under this (S)10.5.2 shall be subject to the
prepayment provisions of (S)4.2.
10.6. Sale and Leaseback. After the Closing Date, each Borrower will
------------------
not, and will not permit any of its Restricted Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby any of the Borrowers or any
Restricted Subsidiary of a Borrower shall sell or transfer any property owned by
it in order then or thereafter to lease such property or lease other property
that
<PAGE>
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a Borrower or any Restricted Subsidiary of a Borrower intends to use for
substantially the same purpose as the property being sold or transferred,
provided that any Borrower or any of their Restricted Subsidiaries may enter
- --------
into such sale-leaseback transactions to the extent that the aggregate net book
value (at the time of disposition thereof and after giving effect to the
contemplated disposition) of the assets sold in connection with all such
sale-leasebacks (other than the BPR Sale/Leaseback, which is additionally
permitted hereunder) does not exceed (a) with respect to the US Borrower,
$10,000,000 in the aggregate for any calendar year, (b) with respect to the
Canadian Borrower, $2,500,000 in the aggregate for any calendar year, (c) with
respect to the Australian Borrower at any time, $2,500,000 in the aggregate for
any calendar year and (d) with respect to the Mexican Borrower at any time,
$15,500,000 in the aggregate during the term of this Agreement; provided, in the
--------
case of the Mexican Borrower , that the Net Cash Proceeds of such sale -
leaseback transactions are applied to prepay the Mexican Loans in accordance
with (S)4.2.2(d).
10.7. Compliance with Environmental Laws. Except in compliance with all
----------------------------------
applicable Environmental Laws, each Borrower will not, and will not permit any
of its Restricted Subsidiaries to, (a) use any of the Real Estate or any portion
thereof for the handling, processing, storage or disposal of Hazardous
Substances, (b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous
Substances, (c) generate any Hazardous Substances on any of the Real Estate, (d)
conduct any activity at any Real Estate or use any Real Estate in any manner so
as to cause a release (i.e. releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing or
dumping) or threatened release of Hazardous Substances on, upon or into the Real
Estate or (e) otherwise conduct any activity at any Real Estate or use any Real
Estate in any manner that would violate any Environmental Law or bring such Real
Estate in violation of any Environmental Law.
10.8. CSX Remaining Debt. Each Borrower will not, and will not permit
------------------
any of its Restricted Subsidiaries to, amend, supplement or otherwise modify the
terms of the CSX Remaining Debt, the CSX Security Agreements or the CSX
Mortgages except with the written consent of the Administrative Agent and on
terms no less favorable to the Borrowers than the existing terms under such
agreements (including, without limitation, fees and expenses to be paid in
connection therewith).
10.9. Employee Benefit Plans. Except as set forth on Schedule 8.15,
---------------------- -------------
none of the Canadian Borrower, the Canadian Guarantors, the US Borrower nor any
ERISA Affiliate will,
(a) engage in any "prohibited transaction" within the meaning of
(S)406 of ERISA or (S)4975 of the Code which could result in a material
liability for the Borrowers or any of their Restricted Subsidiaries; or
<PAGE>
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(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in (S)302 of ERISA, whether
or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of the
Borrowers or any of their Restricted Subsidiaries pursuant to (S)302(f) or
(S)4068 of ERISA;
(d) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of (S)4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities, by
more than $200,000;
(e) fail to contribute to any Canadian Plan any amount required to
be contributed thereto in accordance with applicable law or the terms of
such Canadian Plan; or
(f) permit or take any action which would result in the aggregate
going concern unfunded liability or the aggregate solvency deficiency in
respect of all the Canadian Plans which are funded plans, determined
pursuant to the actuarial assumptions and methodology utilized in the most
recent actuarial valuations therefor, to exceed the Canadian dollar
equivalent of $200,000.
10.10. Business Activities. Each Borrower will not, and will not permit any
-------------------
of its Restricted Subsidiaries, to engage directly or indirectly (whether
through Restricted Subsidiaries or otherwise) in any type of business not
engaged in by such Borrower or such Restricted Subsidiary on the Closing Date,
unless incidental or related to any type of business engaged in by such Borrower
or such Restricted Subsidiaries on such date.
10.11. Capitalization. Each Borrower will not, and will not permit any of
--------------
its Restricted Subsidiaries to, authorize, issue or sell any capital stock or
partnership interests, grant any options, warrants or other rights to purchase
any capital stock or in any way change the capitalization of any of its
Restricted Subsidiaries in such a manner as to cause such Borrower to own
directly or indirectly less than one hundred percent of the capital stock or
partnership interests, as the case may be, of each of its Restricted
Subsidiaries (except as set forth in (S)8.19 or (S)10.5.2). Each Borrower will
not issue any capital stock having debt-like features (such as mandatory cash
dividends, mandatory redemption provisions or other provisions which create
monetary obligations on such Borrower payable in cash during a period when Loans
may be outstanding) except to the extent that such capital stock, if classified
as Indebtedness of such Borrower, would be permitted by (S)10.1 hereof.
<PAGE>
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10.12. Fiscal Year. Each Borrower will not, and will not permit its
-----------
Restricted Subsidiaries to, change the date of the end of their fiscal year from
that set forth in (S)8.20 hereof.
10.13. Negative Pledges. None of the Borrowers nor any of their Restricted
----------------
Subsidiaries will enter into any agreement (excluding this Credit Agreement and
the Loan Documents) prohibiting the creation or assumption of any lien upon its
properties, revenues or assets whether now owned or hereafter acquired other
than agreements with Persons prohibiting any such lien on assets in which such
Person has a prior security interest which is permitted by (S)10.2.
10.14. Transactions with Affiliates. Each Borrower will not, and will not
----------------------------
permit any of its Restricted Subsidiaries to, engage in any transaction with any
Affiliate (other than (i) for services as employees, officers and directors and
(ii) stock options awarded to employees and directors pursuant to incentive
compensation plans operated by such Borrower involving not more than 25% of the
common stock of such Borrower), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any such Affiliate or, to the knowledge of such Borrower, any
corporation, partnership, trust or other entity in which any such Affiliate has
a substantial interest or is an officer, director, trustee or partner, on terms
more favorable to such Person than would have been obtainable on an arm's-length
basis in the ordinary course of business.
11. FINANCIAL COVENANTS OF THE BORROWERS.
------------------------------------
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or the Issuing Bank has any obligation
to issue, extend or renew any Letters of Credit:
11.1. Funded Debt to EBITDAR Ratio. The Borrowers will not permit the
----------------------------
Funded Debt to EBITDAR Ratio at any time during any period described in the
table set forth below to exceed the ratio set forth opposite such period in such
table:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date - 6/30/2000 3.60:1.00
7/1/2000 - 3/31/2001 3.35:1.00
4/1/2001 - 3/31/2002 3.00:1.00
4/1/2002 - and thereafter 2.75:1.00
</TABLE>
<PAGE>
-126-
11.2. Cash Flow Coverage. As of the end of each fiscal quarter of the
-------------------
Borrowers and their Restricted Subsidiaries, the Borrowers will not permit the
ratio of (a) the sum of (i) Consolidated EBITDA for the preceding four
consecutive fiscal quarters, minus (ii) the amount of Capital Expenditures made
-----
by the Borrowers and their Restricted Subsidiaries during such period, minus
-----
(iii) cash tax payments made by the Borrowers and their Restricted Subsidiaries
during such period to (b) the sum of (i) Consolidated Total Interest Expense for
such period, plus (ii) all regularly scheduled payments required to be made
----
during such period in respect of principal on long-term Consolidated Funded Debt
(other than principal payments on the CSX Remaining Debt made with the proceeds
of a refinancing of the CSX Remaining Debt on terms satisfactory to the
Administrative Agent and the Majority Banks) to be less than 1.15:1.00.
11.3. Net Worth. The Borrowers will not, at any time, permit the
---------
Consolidated Net Worth of the Borrowers and their Restricted Subsidiaries at any
time to be less than the sum of (a) $61,000,000 plus, (b) on a cumulative basis,
50% of positive Consolidated Net Income of the Borrowers and their Restricted
Subsidiaries for each fiscal quarter subsequent to June 30, 1999.
11.4. Minimum Quarterly EBITDA. The Borrowers will not permit (a)
------------------------
Consolidated EBITDA for the fiscal quarter ending December 31, 1999 to be less
than $9,000,000, (b) Consolidated EBITDA for the period of two fiscal quarters
ending March 31, 2000 to be less than $18,000,000, (c) Consolidated EBITDA for
the period of three fiscal quarters ending June 30, 2000 to be less than
$27,000,000, and (d) Consolidated EBITDA for the period of four fiscal quarters
ending September 30, 2000 to be less than $36,000,000.
11.5. Calculation of Financial Covenants. To the extent a Permitted
----------------------------------
Acquisition has occurred in any period being tested in the covenants contained
in this (S)11, the calculations of such covenants, to the extent applicable,
will be tested on a Pro Forma Basis.
12. CLOSING CONDITIONS.
------------------
The obligations of certain of the Banks to convert their claims against
the US Borrower and certain of its Restricted Subsidiaries with respect to the
Prior Credit Agreement into Obligations under this Credit Agreement, to amend
and restate the Prior Credit Agreement and to make the initial Loans and the
Issuing Bank to convert any existing letters of credit into Letters of Credit
under this Credit Agreement and issue any initial Letters of Credit shall be
subject to the satisfaction of the following conditions precedent on or prior to
the Closing Date. From and after the Closing Date, all of the obligations of the
US Borrower and certain of its Restricted Subsidiaries under or in respect of
the Prior Credit Agreement shall be evidenced solely by the terms of this Credit
Agreement and the other Loan Documents.
<PAGE>
-127-
12.1. Loan Documents, etc.
-------------------
(a) each of the Loan Documents shall have been duly executed
and delivered by the respective parties thereto, shall be in full force and
effect and shall be in form and substance satisfactory to each of the
Banks. Each Bank shall have received a fully executed copy of each such
document; and
(b) the Administrative Agent shall have received true and complete
copies of the Mexican Acquisition Documents.
12.2. Certified Copies of Charter Documents. Each of the Banks shall
-------------------------------------
have received from each of the Borrowers and each of their Restricted
Subsidiaries a copy, certified by a duly authorized officer of such Person to be
true and complete and in full force and effect on the Closing Date, of each of
(i) its charter or other organizational documents as in effect on such date of
certification, and (ii) its by-laws, as in effect on such date of certification.
12.3. Corporate or Other Action. All corporate or other action necessary
-------------------------
for the valid execution, delivery and performance by each of the Borrowers and
each of their Restricted Subsidiaries of this Credit Agreement and the other
Loan Documents to which it is or is to become a party shall have been duly and
effectively taken, and evidence thereof satisfactory to the Banks shall have
been provided to each of the Banks.
12.4. Incumbency Certificate. Each of the Banks shall have received
----------------------
from each of the Borrowers and each of their Restricted Subsidiaries an
incumbency certificate, dated as of the Closing Date, signed by a duly
authorized officer of such Borrower or such Restricted Subsidiary, and giving
the name and bearing a specimen signature of each individual who shall be
authorized: (i) to sign, in the name and on behalf of each Borrower or such
Restricted Subsidiary, each of the Loan Documents to which such Borrower or such
Restricted Subsidiary is or is to become a party; (ii) in the case of the US
Borrower, Australian Borrower and Mexican Borrower, to make Loan Requests and,
in the case of the US Borrower, Canadian Borrower and Mexican Borrower,
Conversion Requests and, in the case of the US Borrower, to apply for Letters of
Credit; and (iii) to give notices and to take other action on its behalf under
the Loan Documents.
12.5. Validity of Liens. The Security Documents shall be effective to
-----------------
create in favor of the applicable Agent a legal, valid and enforceable first
priority or first-ranking (except for Permitted Liens entitled to priority under
applicable law and except for the unsecured portion of ASR and the Australian
Guarantors guaranty of the Canadian Guaranteed Obligations and the Mexican
Guaranteed Obligations) security interest or hypothec in the Collateral. All
filings (including, without limitation, documents required to be filed with the
STB, the Mexican Railway Registry (Registro Ferrovario Mexicano), UCC-1
financing statements, UCC fixture financing statements, Australian Securities
and Investment Commission statements, applications for registration in the
Register
<PAGE>
-128-
of Personal and Movable Real Rights of the Province of Quebec and financing
statements under the Personal Property Security Act (Ontario), recordings,
registrations, deliveries of instruments and other actions necessary or
desirable in the opinion of the Administrative Agent to perfect, protect and
preserve or publish such security interests or hypothecs shall have been duly
effected or the instruments or other documents to be recorded, registered,
delivered or filed shall have been delivered (without any conditions applying to
such delivery) to the Administrative Agent or its agents. The Administrative
Agent shall have received evidence thereof in form and substance satisfactory to
the Administrative Agent.
12.6. Perfection Certificates and Lien Search Results. The Administrative
-----------------------------------------------
Agent shall have received from each of the Borrowers and their Restricted
Subsidiaries a completed and fully executed Perfection Certificate and the
results of UCC, STB and other lien searches with respect to its Collateral,
indicating no encumbrances other than Permitted Liens and otherwise in form and
substance satisfactory to the Administrative Agent.
12.7. Certificates of Insurance. The Administrative Agent shall have
-------------------------
received (a) a certificate of insurance from an independent insurance broker
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Security Documents and (b)
certified copies of all policies evidencing such insurance (or certificates
therefore signed by the insurer or an agent authorized to bind the insurer)
showing the Administrative Agent as additional insured or loss payee, as
applicable.
12.8. Opinion of Counsel. Each of the Banks and the Administrative
------------------
Agent shall have received a favorable legal opinion addressed to the Banks and
the Administrative Agent, dated as of the Closing Date, in form and substance
satisfactory to the Banks and the Administrative Agent, from:
(a) Harter, Secrest & Emery LLP, counsel to the US Borrower and the
US Restricted Subsidiaries;
(c) local counsel to certain US Restricted Subsidiaries in the
state of Virginia;
(c) local counsel to the Australian Borrower and the Australian
Guarantors;
(d) local counsel to the Canadian Borrower and the Canadian
Guarantors (including a (S)525 opinion); and
(e) local counsel to the Mexican Borrower and the Mexican
Guarantor.
12.9. Payment of Fees. The Borrowers shall have paid to the Administrative
---------------
Agent all fees pursuant to (S)6.1 and the US Borrower shall have
<PAGE>
-129-
paid all interest and fees under the Prior Credit Agreement in accordance with
(S)30.3 hereof. The Borrowers shall have reimbursed the Administrative Agent
for, or paid directly, all fees, costs and expenses incurred by the
Administrative Agent's Special Counsel, the Australian Counsel, the Canadian
Counsel and the Mexican Counsel in connection with the closing of the
transactions contemplated hereby and all other fees payable under the Fee
Letters, and shall pay the fees of Bingham Dana, LLP, Australian Counsel, the
Canadian Counsel and the Mexican Counsel.
12.10. Disbursement Instruction. The Administrative Agent shall have
------------------------
received disbursement instructions from the Borrowers with respect to the
proceeds of the initial Loans.
12.11. Closing Certificate. The Borrowers shall have delivered to the
-------------------
Administrative Agent a certificate, dated as of the Closing Date, stating that,
as of such date (a) the representations and warranties set forth herein or in
any other Loan Document are true and correct (b) no Default or Event of Default
has occurred and is continuing, and (c) the conditions set forth in this (S)12
have been satisfied.
12.12. Closing Date Funded Debt to EBITDAR Ratio. The Administrative
-----------------------------------------
Agent shall have received evidence that on the Closing Date (immediately after
to giving effect to any borrowings under this Credit Agreement), the Funded Debt
to EBITDAR Ratio, determined on a Pro Forma Basis, shall not exceed 3.60:1.00.
12.13. Completion of Mexican Acquisition. The Administrative Agent shall
---------------------------------
have received a certificate from the Secretary of the Mexican Borrower and
a letter of opinion from local counsel to the Mexican Borrower to the effect
that (other than the payment of the purchase price to be paid from the initial
borrowing of the Mexican Loans on the Closing Date), all of the conditions set
forth in the Mexican Acquisition Documents, if any, have been satisfied, and
such acquisition is valid under the laws of the United Mexican States.
13. CONDITIONS TO ALL BORROWINGS.
----------------------------
The obligations of the Banks to make any Revolving Credit Loans and of the
Issuing Bank to issue, extent or renew any Letter of Credit, in each case
whether on or after the Closing Date, shall also be subject to the satisfaction
of the following conditions precedent:
13.1. Representations True; No Event of Default. Each of the
-----------------------------------------
representations and warranties of the Borrowers and their Subsidiaries contained
in this Credit Agreement, the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of such Loan or the issuance, extension or
renewal of such Letter of Credit, with the same effect as if made at and as of
that time (except to the extent of changes resulting from transactions
<PAGE>
-130-
contemplated or permitted by this Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
13.2. No Legal Impediment. No change shall have occurred in any law or
-------------------
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Administrative Agent would make it illegal for the
Issuing Bank to issue, extend or renew such Letter of Credit.
13.3. Governmental Regulation. Each Bank shall have received such
-----------------------
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
13.4. Proceedings and Documents. All proceedings in connection with the
-------------------------
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Agents and the Administrative Agent's Special
Counsel and the Banks and such counsel shall have received all information and
such counterpart originals or certified or other copies of such documents as the
Administrative Agent may reasonably request.
14. EVENTS OF DEFAULT; ACCELERATION; ETC.
------------------------------------
14.1. Events of Default and Acceleration. If any of the following
----------------------------------
events ("Events of Default" or, if the giving of notice or the lapse of time or
-----------------
both is required, then, prior to such notice or lapse of time, "Defaults") shall
--------
occur:
(a) any Borrower shall fail to pay any principal of its Loans or
the US Borrower shall fail to pay any Reimbursement Obligation when the
same shall become due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other date fixed for payment;
(b) any Borrower shall fail to pay any interest on its Loans,
Commitment Fee, any Letter of Credit Fee, Agents' Fees, or other sums due
hereunder or under any of the other Loan Documents, when the same shall
become due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for payment, and
such failure shall continue for three (3) days;
(c) any of the Borrowers or any of their Restricted Subsidiaries
shall fail to comply with any of the covenants contained in (S)(S)9, 10 or
11;
<PAGE>
-131-
(d) any of the Borrowers or any of their Restricted
Subsidiaries shall fail to perform any term, covenant or agreement
contained herein or in any of the other Loan Documents (other than
those specified elsewhere in this (S)14.1) for fifteen (15) days after
written notice of such failure has been given to the applicable
Borrower by the applicable Agent;
(e) any representation or warranty of any of the Borrowers or
any of their Restricted Subsidiaries in this Credit Agreement or any of
the other Loan Documents or in any other document or instrument
delivered pursuant to or in connection with this Credit Agreement shall
prove to have been false in any material respect upon the date when
made or deemed to have been made or repeated;
(f) any of the Borrowers or any of their Restricted
Subsidiaries shall fail to pay when due, or within any applicable
period of grace, any obligation for borrowed money or credit received
(including without limitation the CSX Remaining Debt) or in respect of
---------
any Capitalized Leases, or fail to observe or perform any material
term, covenant or agreement contained in any agreement by which it is
bound, evidencing or securing borrowed money or credit received
(including without limitation, the CSX Remaining Debt) or in respect of
---------
any Capitalized Leases for such period of time as would permit
(assuming the giving of appropriate notice if required) the holder or
holders thereof or of any obligations issued thereunder to accelerate
the maturity thereof;
(g) any of the Borrowers or any of their Restricted
Subsidiaries shall make an assignment for the benefit of creditors, or
admit in writing its inability to pay or generally fail to pay its
debts as they mature or become due, or shall petition or apply for the
appointment of a trustee or other custodian, liquidator, administrator
or receiver of any of the Borrowers or any of their Restricted
Subsidiaries or of any substantial part of the assets of any of the
Borrowers or any of their Restricted Subsidiaries or shall commence any
case or other proceeding relating to any of the Borrowers or any of
their Restricted Subsidiaries under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in
effect, or shall take any action to authorize or in furtherance of any
of the foregoing, or if any such petition or application shall be filed
or any such case or other proceeding shall be commenced against any of
the Borrowers or any of their Restricted Subsidiaries and the Borrowers
or any of their Restricted Subsidiaries shall indicate its approval
thereof, consent thereto or acquiescence therein or such petition or
application shall not have been dismissed within forty-five (45) days
following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any of the Borrowers
or any of their Restricted Subsidiaries bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree
or order for
<PAGE>
-132-
relief is entered in respect of any of the Borrowers or any Restricted
Subsidiary of the Borrowers in an involuntary case under federal
bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any
final judgment against any of the Borrowers or any of their Restricted
Subsidiaries that, with other outstanding final judgments,
undischarged, against any of the Borrowers or any of their Restricted
Subsidiaries exceeds in the aggregate $2,000,000;
(j) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded, or the Administrative Agent's
security interests, hypothecs or liens in a substantial portion of the
Collateral shall cease to be perfected or published, or shall cease to
have the priority or rank contemplated in the Security Documents, in
each case otherwise than in accordance with the terms thereof or with
the express prior written agreement, consent or approval of the Banks,
or any action at law, suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced
by or on behalf of any of the Borrowers or any of their Restricted
Subsidiaries party thereto or any of their respective stockholders, or
any court or any other governmental or regulatory authority or agency
of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more
of the Loan Documents is illegal, invalid or unenforceable in
accordance with the terms thereof;
(k) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably
could be expected to result in liability of the US Borrower or any of
its US Restricted Subsidiaries to the PBGC or such Guaranteed Pension
Plan in an aggregate amount exceeding $2,000,000 and such event in the
circumstances occurring reasonably could constitute grounds for the
termination of such Guaranteed Pension Plan by the PBGC or for the
appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan; or a trustee shall
have been appointed by the United States District Court to administer
such Plan; or the PBGC shall have instituted proceedings to terminate
such Guaranteed Pension Plan;
(l) any of the Borrowers or any of their Restricted
Subsidiaries shall be enjoined, restrained or in any way prevented by
the order of any court or any administrative or regulatory agency from
conducting any material part of its business and such order shall
continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute,
embargo, condemnation, act of God or public enemy, or other casualty,
<PAGE>
-133-
which in any such case causes, for more than fifteen (15) consecutive
days, the cessation or substantial curtailment of revenue producing
activities at any facility of the US Borrower or any of its Restricted
Subsidiaries if such event or circumstance is not covered by business
interruption insurance and would have a material adverse effect on the
business or financial condition of the US Borrower and its Restricted
Subsidiaries taken as a whole;
(n) (i) there shall occur the loss, suspension or revocation
of, or failure to renew, any license or permit now held or hereafter
acquired by the Borrowers or any of their Restricted Subsidiaries if
such loss, suspension, revocation or failure to renew would have a
material adverse effect on the business or financial condition of the
Borrowers and their Restricted Subsidiaries taken as a whole, or (ii)
there shall occur the loss, suspension or revocation of the Concession
or there shall occur any event that would permit the loss, suspension
or revocation of the Concession;
(o) any of the Borrowers or any of their Restricted
Subsidiaries shall be indicted for a state or federal crime, or any
civil or criminal action shall otherwise have been brought against any
of the Borrowers or any of their Restricted Subsidiaries, a punishment
for which in any such case could include the forfeiture of any assets
of such Borrower or such Restricted Subsidiary having a fair market
value in excess of $2,000,000;
(p) (i) the Fuller Immediate Family shall, at any time, cease
to maintain beneficial ownership and control of at least twenty-five
percent (25%) of the voting interests of GWI, (ii) any person or group
of persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) other than the Fuller Immediate
Family shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under
said Act) of more than twenty-five percent (25%) of the outstanding
shares of the common stock of GWI, (iii) during any period of twelve
consecutive calendar months, individuals who were directors of GWI on
the first day of such period shall cease to constitute a majority of
the board of directors of GWI, or (iv) any of the Borrowers shall at
any time own directly or indirectly less than 100% of the shares of the
capital stock or partnership interests, as the case may be, of each of
their Restricted Subsidiaries, as adjusted pursuant to any stock split,
stock dividend or recapitalization or reclassification of the capital
of such Person, except as otherwise consented to by the applicable
Banks pursuant to (S)10.5.2, and except as otherwise described in
(S)8.19; or
(q) the Canadian Borrower shall fail to comply with the
requirements of (S)4.2.7(d) and has not otherwise prepaid the Canadian
Term Loan with the Net Cash Proceeds referred to in such (S)4.2.7(d),
or does not make such prepayment within 5 days of such failure;
<PAGE>
-134-
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Majority Banks shall, by
notice in writing to the Borrowers declare all amounts owing with respect to
this Credit Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by each of the Borrowers;
provided that in the event of any Event of Default specified in (S)(S)14.1(g) or
- --------
14.1(h), all such amounts shall become immediately due and payable automatically
and without any requirement of notice from the Administrative Agent or any Bank.
14.2. Termination of Commitments. If any one or more of the Events of
--------------------------
Default specified in (S)(S)14.1(g) or 14.1(h) shall occur, any unused portion of
the credit hereunder shall forthwith terminate and each of the Banks shall be
relieved of all further obligations to make Loans to the Borrowers and the
Issuing Bank shall be relieved of all further obligations to issue, extend or
renew Letters of Credit. If any other Event of Default shall have occurred and
be continuing, or if on any Drawdown Date or other date for issuing, extending
or renewing any Letter of Credit the conditions precedent to the making of the
Loans to be made on such Drawdown Date or (as the case may be) to issuing,
extending or renewing such Letter of Credit on such other date are not
satisfied, the Administrative Agent may and, upon the request of the Majority
Banks, shall, by notice to the Borrowers, terminate the unused portion of the
credit hereunder, and upon such notice being given such unused portion of the
credit hereunder shall terminate immediately and each of the Banks shall be
relieved of all further obligations to make Loans and the Issuing Bank shall be
relieved of all further obligations to issue, extend or renew Letters of Credit.
No termination of the credit hereunder shall relieve any Borrower of any of its
Obligations.
14.3. Remedies. In case any one or more of the Events of Default shall
--------
have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to (S)14.1, each Bank, if owed
any amount with respect to the Loans or the Reimbursement Obligations, may, with
the consent of the Majority Banks but not otherwise, proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the ex parte
-- -----
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or the Agents or the holder of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of law.
<PAGE>
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15. SETOFF.
------
Regardless of the adequacy of any Collateral, during the continuance of any
Event of Default, any deposits or other sums credited by or due from any of the
Banks to any of the Borrowers and any securities or other property of any of the
Borrowers in the possession of such Bank may be applied to or set off by such
Bank against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of any of the Borrowers to such Bank. Each of the Banks
agrees with each other Bank that (i) if an amount to be set off is to be applied
to Indebtedness of any Borrower to such Bank, other than Indebtedness evidenced
by the Notes held by such Bank, the Australian Revolving Credit Loan Accounts
held by the Australian Agent on its behalf, or constituting Reimbursement
Obligations owed to such Bank, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness evidenced by all such Notes held by
such Bank, such Australian Revolving Credit Loan Accounts held by the Australian
Agent on its behalf, or constituting Reimbursement Obligations owed to such
Bank, and (ii) if such Bank shall receive from such Borrower, whether by
voluntary payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Notes held by such Bank or the
Australian Revolving Credit Loan Accounts held by the Australian Agent on its
behalf, or constituting Reimbursement Obligations owed to such Bank by
proceedings against such Borrower at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar proceedings, or
otherwise, and shall retain and apply to the payment of the Loans made by, or
Reimbursement Obligations owed to, such Bank any amount in excess of its ratable
portion of the payments received by all of the Banks with respect to the Loans
made by, and Reimbursement Obligations owed to, all of the Banks, such Bank will
make such disposition and arrangements with the other Banks with respect to such
excess, either by way of distribution, pro tanto assignment of claims,
--- -----
subrogation or otherwise as shall result in each Bank receiving in respect of
the Loans made by it or Reimbursement Obligations owed it, its proportionate
payment as contemplated by this Credit Agreement; provided that if all or any
--------
part of such excess payment is thereafter recovered from such Bank, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.
16. THE AGENTS.
----------
16.1. Authorization.
-------------
(a) The Agents are authorized to take such action on behalf of
each of the Banks and to exercise all such powers as are hereunder and
under any of the other Loan Documents and any related documents
delegated to the Agents, together with such powers as are reasonably
incident thereto, provided that no duties or responsibilities not
--------
expressly assumed herein or therein shall be implied to have been
assumed by the Agents.
<PAGE>
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(b) The relationship between the Agents and each of the Banks
is that of an independent contractor. The use of the term "Agent" is
for convenience only and is used to describe, as a form of convention,
the independent contractual relationship between the Agents and each of
the Banks. Nothing contained in this Credit Agreement nor the other
Loan Documents shall be construed to create an agency, trust or other
fiduciary relationship between the Agents and any of the Banks.
(c) As an independent contractor empowered by the Banks to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, the Administrative Agent
is nevertheless a "representative" of the Banks, as that term is
defined in Article 1 of the Uniform Commercial Code, for purposes of
actions for the benefit of the Banks and the Agents with respect to all
collateral security and guaranties contemplated by the Loan Documents.
Such actions include the designation of the Administrative Agent as
"secured party", "mortgagee" or the like on all financing statements
and other documents and instruments, whether recorded or otherwise,
relating to the attachment, perfection, priority or enforcement of any
security interests, mortgages or deeds of trust in collateral security
intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Banks and the Agents.
16.2. Employees and Agents. The Agents may exercise their powers and
--------------------
execute their duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to
their rights and duties under this Credit Agreement and the other Loan
Documents. The Agents may utilize the services of such Persons as the Agents in
their sole discretion may reasonably determine.
16.3. No Liability. Neither of the Agents nor any of their
------------
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable to any
of the Banks for any waiver, consent or approval given or any action taken, or
omitted to be taken, in good faith by it or them hereunder or under any of the
other Loan Documents, or in connection herewith or therewith, or be responsible
for the consequences of any oversight or error of judgment whatsoever, except
that the Agents or such other Person, as the case may be, shall be liable for
losses due to its willful misconduct or gross negligence.
16.4. No Representations.
------------------
16.4.1. General. The Agents shall not be responsible for the
-------
execution or validity or enforceability of this Credit Agreement, the
Notes, the Letters of Credit, any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute,
collateral security for the Obligations, or for the value of any such
collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the
Obligations, or for any recitals or statements, warranties or
<PAGE>
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representations made herein or in any of the other Loan Documents or in
any certificate or instrument hereafter furnished to it by or on behalf
of any of the Borrowers or any of their Restricted Subsidiaries, or be
bound to ascertain or inquire as to the performance or observance of
any of the terms, conditions, covenants or agreements herein or in any
instrument at any time constituting, or intended to constitute,
collateral security for the Obligations or to inspect any of the
properties, books or records of any of the Borrowers or any of their
Restricted Subsidiaries. The Agents shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to any of them
by any of the Borrowers or any holder of any of the Notes shall have
been duly authorized or is true, accurate and complete. The Agents have
not made nor do they now make any representations or warranties,
express or implied, nor do they assume any liability to the Banks, with
respect to the credit worthiness or financial conditions of any of the
Borrowers or any of their Restricted Subsidiaries. Each Bank
acknowledges that it has, independently and without reliance upon the
Agents or any other Bank, and based upon such information and documents
as it has deemed appropriate, made its own credit analysis and decision
to enter into this Credit Agreement.
16.4.2. Closing Documentation, Etc. For purposes of
---------------------------
determining compliance with the conditions set forth in (S)(S)12 and
13, each Bank that has executed this Credit Agreement shall be deemed
to have consented to, approved or accepted, or to be satisfied with,
each document and matter either sent, or made available, by the
Administrative Agent or the Arranger to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Bank,
unless an officer of the Administrative Agent or the Arranger active
upon the Borrower's account shall have received notice from such Bank
prior to the Closing Date specifying such Bank's objection thereto and
such objection shall not have been withdrawn by notice to the
Administrative Agent or the Arranger to such effect on or prior to the
Closing Date.
16.5. Payments.
--------
16.5.1. Payments to Agents. A payment by any of the Borrowers
------------------
to the Agents hereunder or any of the other Loan Documents for the
account of any Bank or the Issuing Bank shall constitute a payment to
such Bank or the Issuing Bank. The Agents agree promptly to distribute
to each Bank and the Issuing Bank, as the case may be, such Bank's or
Issuing Bank's pro rata share of payments received by the Agents for
--- ----
the account of the Banks or the Issuing Bank except as otherwise
expressly provided herein or in any of the other Loan Documents.
16.5.2. Distribution by Agents. If in the opinion of any the
----------------------
Agents the distribution of any amount received by it in such capacity
hereunder, under the Notes, this Credit Agreement or under any of the
<PAGE>
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other Loan Documents might involve it in liability, it may refrain from
making such distribution until its right to make such distribution
shall have been adjudicated by a court of competent jurisdiction. If a
court of competent jurisdiction shall adjudge that any amount received
and distributed by the Agents is to be repaid, each Person to whom any
such distribution shall have been made shall either repay to the Agents
its proportionate share of the amount so adjudged to be repaid or shall
pay over the same in such manner and to such Persons as shall be
determined by such court.
16.5.3. Delinquent Banks. Notwithstanding anything to the
----------------
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Bank that fails (i) to make available to the applicable
Agent its applicable pro rata share (if any) of any Loan or to purchase
--- ----
its applicable pro rata amount (if any) of any Letter of Credit
--- ----
Participation or (ii) to comply with the provisions of (S)16 with
respect to making dispositions and arrangements with the other Banks,
where such Bank's share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata (based on all applicable
--- ----
outstanding Loans and Unpaid Reimbursement Obligations) share of such
payments due and payable to all of the Banks, in each case as, when and
to the full extent required by the provisions of this Credit Agreement,
shall be deemed delinquent (a "Delinquent Bank") and shall be deemed a
---------- ----
Delinquent Bank until such time as such delinquency is satisfied. A
Delinquent Bank shall be deemed to have assigned any and all payments
due to it from the Borrowers, whether on account of the applicable
outstanding Loans, Unpaid Reimbursement Obligations, interest, fees or
otherwise, to the remaining applicable nondelinquent Banks for
application to, and reduction of, their respective applicable pro rata
--- ----
shares of all then applicable outstanding Loans and Unpaid
Reimbursement Obligations so affected by such delinquency. The
Delinquent Bank hereby authorizes the Agents to distribute such
payments to the nondelinquent Banks in proportion to their respective
applicable pro rata shares of all such applicable outstanding Loans and
--- ----
Unpaid Reimbursement Obligations. A Delinquent Bank shall be deemed to
have satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Loans and
Unpaid Reimbursement Obligations of the nondelinquent Banks so affected
by such delinquency, the applicable Banks' respective pro rata shares
--- ----
of all such applicable outstanding Loans and Unpaid Reimbursement
Obligations have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency.
16.6. Holders of Notes. The Administrative Agent may deem and treat the
----------------
payee of any Note or the purchaser of any Letter of Credit Participation as the
absolute owner or purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
<PAGE>
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16.7. Indemnity. The Banks ratably (computed by reference to each
---------
Bank's percentage of the principal amount of the Outstanding Loans on such date
(including the unfunded portion of the Commitments), or, if no such principal is
Outstanding, each Bank's percentage of the Total Commitment) agree hereby to
indemnify and hold harmless the Agents, their affiliates from and against any
and all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Agents or such
affiliate has not been reimbursed by the Borrowers as required by (S)17), and
liabilities of every nature and character arising out of or related to this
Credit Agreement, the Notes, or any of the other Loan Documents or the
transactions contemplated or evidenced hereby or thereby, or the Agents' or such
affiliate's actions taken hereunder or thereunder, except to the extent the
Borrowers have indemnified the Agents for the same in accordance with (S)18, and
except to the extent that any of the same shall be directly caused by the
Agents' or such affiliate's willful misconduct or gross negligence.
16.8. Agents as Banks. In their individual capacity, the Agents shall
---------------
each have the same obligations and the same rights, powers and privileges in
respect to their Commitments and the Loans made by them, and as the holder of
any of the Notes or Australian Obligations or Mexican Obligations and as the
purchaser of any Letter of Credit Participations, as they would have were it not
also the Agents.
16.9. Resignation. An Agent may resign at any time by giving sixty
-----------
(60) days prior written notice thereof to the Banks and the Borrowers. Upon any
such resignation, the Majority Banks shall have the right to appoint a successor
Agent. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to the
Borrowers. If no successor Agent shall have been so appointed by the Majority
Banks and shall have accepted such appointment within thirty (30) days after
such retiring Agent's giving of notice of resignation, then such retiring Agent
may, on behalf of the Banks, appoint a successor Agent, which shall be a
financial institution having a rating of not less than A or its equivalent by
Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of such retiring Agent, and such retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation, the provisions of this Credit Agreement and the
other Loan Documents shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
16.10. Notification of Defaults and Events of Default. Each Bank hereby
----------------------------------------------
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Agents thereof. The Agents hereby agrees that upon
receipt of any notice under this (S)16.10 it shall promptly notify the other
Banks of the existence of such Default or Event of Default.
<PAGE>
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16.11. Duties of Documentation Agent. The Documentation Agent as such
-----------------------------
shall have no duties or responsibilities to the Borrowers, the Guarantors, the
Banks, the Issuing Bank or the Agents hereunder.
16.12. Quebec Security. For greater certainty, and without limiting the
---------------
powers of the Administrative Agent hereunder or under any of the Canadian
Security Documents, each of the Banks, the Issuing Bank and the Agents hereby
acknowledges that the Administrative Agent shall, for purposes of holding any
security granted by the Canadian Borrower or any Canadian Guarantor on their
respective property pursuant to the laws of the Province of Quebec to secure
payment of the Quebec Bond, be the holder of an irrevocable power of attorney
(fonde de pouvoir) (within the meaning of the Civil Code of Quebec) for all
present and future Banks, the Issuing Bank and the Agents and in particular for
all present and future holders of the Quebec Bond. Each of the Agents, the
Issuing Bank and the Banks hereby irrevocably constitutes, to the extent
necessary, the Administrative Agent as the holder of an irrevocable power of
attorney (fonde de pouvoir) (within the meaning of Article 2692 of the Civil
Code of Quebec) in order to hold security granted by the Canadian Borrower or
any Canadian Guarantor in the Province of Quebec to secure the Quebec Bond. Each
US Eligible Assignee or Australian Eligible Assignee shall be deemed to have
confirmed and ratified the constitution of the Administrative Agent as the
holder of such irrevocable power of attorney (fonde de pouvoir) by execution of
the relevant Assignment and Acceptance. Notwithstanding the provisions of
Section 32 of the Special Corporate Powers Act (Quebec), the Administrative
Agent may acquire and be the holder of the Quebec Bond. The Canadian Borrower
and the Canadian Guarantors hereby acknowledge that the Quebec Bond constitutes
a title of indebtedness, as such term is used in Article 2692 of the Civil Code
of Quebec. The Administrative Agent hereby acknowledges and accepts the Deeds of
Hypothec and agrees to be bound by the provisions thereof.
17. EXPENSES.
--------
Each of the Borrowers jointly and severally agrees, in accordance with
the provisions set forth in (S)6.14, to pay (i) any taxes (including any
interest and penalties in respect thereto) payable by the Agents, the Issuing
Bank, the Arranger or any of the Banks (other than taxes based upon or measured
by any of the Agent's or any Bank's income or profits) on or with respect to the
transactions contemplated by this Credit Agreement (the Borrowers hereby
agreeing to indemnify each Agent, the Issuing Bank, the Arranger and each Bank
with respect thereto), (ii) the reasonable fees, expenses and disbursements of
the Administrative Agent's Special Counsel, the Australian Counsel, the Canadian
Counsel, the Mexican Counsel and any local counsel to the Agents incurred in
connection with the preparation, syndication, administration or interpretation
of the Loan Documents and other instruments mentioned herein, each closing
hereunder, and amendments, modifications, approvals, consents or waivers hereto
or hereunder, provided that such counsel shall provide the Borrowers with
--------
invoices reflecting the expenses incurred in connection with the foregoing,
(iii) all reasonable out-of-pocket expenses
<PAGE>
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(including without limitation reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank, the Issuing Bank or the Agents, and
reasonable consulting, accounting, appraisal, investment banking and similar
professional fees and charges) incurred by any Bank or any Agent in connection
with (A) the enforcement of or preservation of rights under any of the Loan
Documents against any of the Borrowers or any of their Restricted Subsidiaries
or the administration thereof after the occurrence of a Default or Event of
Default and (B) any litigation, proceeding or dispute whether arising hereunder
or otherwise, in any way related to any Bank's, the Issuing Bank's or the
Agents' relationship with the Borrowers or any of their Restricted Subsidiaries
except in connection with a claim that any of the Borrowers has against any of
the Banks, the Issuing Bank and the Agents and in which claim such Borrower is
the prevailing party after entry of a final non-appealable judgment or order,
(iv) all reasonable fees, expenses and disbursements of any Bank or the Agents
incurred in connection with UCC searches, STB searches, UCC filings or STB
filings, if any, and the Australian, Canadian and Mexican equivalents thereof,
if any, and (v) all reasonable costs of conducting commercial finance
examinations of the Borrowers' properties, including the applicable daily time
charges of the Administrative Agent's commercial finance examiners, agents,
consultants and representatives engaged in such examinations and appraisals as
in effect from time to time, and reasonable out-of-pocket travel and other
related expenses provided that so long as no Default or Event of Default has
--------
occurred and is continuing, the costs of such commercial finance examinations
shall be limited to a maximum of (A) $15,000 for the first such examination and
(B) $10,000 for each subsequent commercial finance examination. The covenants of
this (S)17 shall survive payment or satisfaction of all other Obligations.
18. INDEMNIFICATION.
---------------
Each of the Borrowers jointly and severally agrees, in accordance with
the provisions set forth in (S)6.14, to indemnify and hold harmless the Agents,
the Issuing Bank, the Arranger and the Banks from and against any and all
claims, actions and suits whether groundless or otherwise, and from and against
any and all liabilities, losses, damages and expenses of every nature and
character arising out of this Credit Agreement or any of the other Loan
Documents or the transactions contemplated hereby including, without limitation,
(i) any actual or proposed use by any of the Borrowers or any of their
Restricted Subsidiaries of the proceeds of any of the Loans or Letters of
Credit, (ii) any actual or alleged infringement of any patent, copyright,
trademark, service mark or similar right of any of the Borrowers or any of their
Restricted Subsidiaries comprised in the Collateral, (iii) any of the Borrowers
or any of their Restricted Subsidiaries entering into or performing this Credit
Agreement or any of the other Loan Documents or (iv) with respect to the
Borrowers and their Restricted Subsidiaries and their respective properties and
assets, the violation of any Environmental Law, the presence, disposal, escape,
seepage, leakage, spillage, discharge, emission, release or threatened release
of any Hazardous Substances or any action, suit, proceeding or investigation
brought or threatened with respect to any Hazardous Substances (including, but
not
<PAGE>
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limited to, claims with respect to wrongful death, personal injury or damage
to property), in each case including, without limitation, the reasonable fees
and disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding other
than as a result of the gross negligence or willful misconduct of the Agents,
the Issuing Bank, the Arranger or any Bank. In the event that any claim is made
against the Agents, the Issuing Bank, the Arranger or any Bank for which
indemnity is provided under this (S)18, the Agents, the Issuing Bank, the
Arranger or such Bank shall provide prompt notice to the Borrowers of any such
claim not otherwise known to the Borrowers, but the failure of the Agents, the
Issuing Bank, the Arranger or such Bank to provide such notice shall not impair
the liability of any Borrower with respect to its indemnification for such claim
except to the extent that such Borrower has been actually prejudiced by such
failure. In litigation, or the preparation therefor, the Banks, the Issuing
Bank, the Arranger and the Agents shall be entitled to select their own counsel
and to participate in the defense and the investigation of such claim, action or
proceeding and, in addition to the foregoing indemnity, the Borrowers agree to
pay promptly the reasonable fees and expenses of such counsel. If, and to the
extent that the obligations of the Borrowers under this (S)18 are unenforceable
for any reason, the Borrowers hereby agree to make the maximum contribution to
the payment in satisfaction of such obligations which is permissible under
applicable law. The covenants contained in this (S)18 shall survive payment or
satisfaction in full of all other Obligations.
19. SURVIVAL OF COVENANTS, ETC.
--------------------------
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of a Borrower or any of its Restricted
Subsidiaries pursuant hereto shall be deemed to have been relied upon by the
Banks, the Issuing Bank and the Agents, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Banks of any of the Loans and the issuance, extension or renewal of any Letters
of Credit, as herein contemplated, and shall continue in full force and effect
so long as any Letter of Credit or any amount due under this Credit Agreement or
the Notes or any of the other Loan Documents remains outstanding or any Bank has
any obligation to make any Loans or the Agents has any obligation to issue,
extend or renew any Letter of Credit, and for such further time as may be
otherwise expressly specified in this Credit Agreement. All statements contained
in any certificate or other paper delivered to any Bank, the Issuing Bank or the
Agents at any time by or on behalf of the Borrowers or any of their Restricted
Subsidiaries pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by such Borrower or such
Restricted Subsidiary hereunder.
20. ASSIGNMENT AND PARTICIPATION.
20.1. Conditions to Assignment by Bank. Except as provided herein, each
--------------------------------
US Bank may assign to one or more US Eligible Assignees and each
<PAGE>
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Australian Bank may assign to one or more Australian Eligible Assignees all or a
portion of its interests, rights and obligations under this Credit Agreement
(including all or a portion of its Commitment Percentage and Commitment and the
same portion of the Loans at the time owing to it, the Notes held by it and its
participating interest, if any, in the risk relating to any Letters of Credit);
provided that (i) the Administrative Agent and, so long as no Default or Event
- --------
of Default shall have occurred and be continuing, the Borrowers, shall have
given prior written consent to such assignment, which consent will not be
unreasonably withheld, (ii) each such assignment shall be of a constant, and not
a varying, percentage of all the assigning Bank's rights and obligations in
respect of the Loans, (iii) each assignment shall be in a minimum amount of
$2,500,000 (or less, if such assignment would be of all of such Bank's
interests, rights and obligations in respect of its Commitment, Loans and Letter
of Credit Participations), (iv) so long as no Default or Event of Default shall
have occurred and be continuing, BKB shall retain an interest under this Credit
Agreement, (v) the parties to such assignment shall execute and deliver to the
Administrative Agent, for recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of Exhibit F hereto (an
---------
"Assignment and Acceptance"), together with any Notes subject to such
assignment, and (vi) no US Term Bank may make any assignment of all or a portion
of its interests, rights and obligations in the Canadian Term Loan to an
assignee who is not dealing at "arms length" with the Canadian Borrower (as such
term is defined in the Income Tax Act of Canada). Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof, (i) the assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder, and (ii) the assigning Bank
shall, to the extent provided in such assignment and upon payment to the
Administrative Agent of the registration fee referred to in (S)20.3, be released
from its obligations under this Credit Agreement. Such release shall not include
any claims which the Borrowers may have against such Bank arising prior to the
date of such assignment.
20.2. Certain Representations and Warranties; Limitations; Covenants.
--------------------------------------------------------------
By executing and delivering an Assignment and Acceptance, the Borrowers, the
Banks (including the assignee Bank) and the applicable Agent confirm to and
agree with each other as to the following paragraphs (c), (e), (f), (g), (h) and
(i) hereof and the Banks (including the assignee Bank) and the applicable Agent
confirm to and agree with each other as to the following paragraphs (a), (b) and
(d);:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Bank makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement,
<PAGE>
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the other Loan Documents or any other instrument or document furnished
pursuant hereto or the attachment, perfection, priority, publication or
rank of any security interest, hypothec or mortgage,
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Borrowers and their Restricted Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations,
or the performance or observance by the Borrowers and their Restricted
Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of their obligations under
this Credit Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in (S)8.4 and (S)9.4 and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance
upon the assigning Bank, the Agents or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Credit Agreement;
(e) such assignee represents and warrants that it is an US
Eligible Assignee or an Australian Eligible Assignee, as applicable;
(f) such assignee appoints and authorizes the Agents to take
such action as agent on its behalf and to exercise such powers under
this Credit Agreement and the other Loan Documents as are delegated to
the Agents by the terms hereof or thereof, together with such powers as
are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Credit Agreement are required to be performed by it as a Bank;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
(i) if applicable, such assignee acknowledges that it has made
arrangements with the assigning Bank satisfactory to such assignee with
respect to its pro rata share of Letter of Credit Fees in respect of
--- ----
outstanding Letters of Credit.
20.3. Register. The Administrative Agent shall maintain a copy of each
--------
Assignment and Acceptance delivered to it and a register or similar list (the
<PAGE>
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"Register") for the recordation of the names and addresses of the Banks and the
Commitment Percentage of, and principal amount of the Loans owing to and Letter
of Credit Participations purchased by, the Banks from time to time. The entries
in the Register shall be conclusive, in the absence of manifest error, and the
Borrowers, the Agents and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Credit Agreement.
The Register shall be available for inspection by the Borrowers and the Banks at
any reasonable time and from time to time upon reasonable prior notice. Upon
each such recordation, the assigning Bank agrees to pay to the Administrative
Agent a registration fee in the sum of $3,500.
20.4. New Notes. Upon its receipt of an Assignment and Acceptance
---------
executed by the parties to such assignment, together with the Notes (if any)
subject to such assignment, the Administrative Agent shall (a) record the
information contained therein in the Register, and (b) give prompt notice
thereof to the Borrowers and the Banks (other than the assigning Bank). Within
five (5) Business Days after receipt of such notice, the applicable Borrower, at
its own expense, shall execute and deliver to the Administrative Agent, in
exchange for the surrendered Notes, new Notes to the order of the US Eligible
Assignee in an amount equal to the amount assumed by such Eligible Assignee
pursuant to such Assignment and Acceptance and, if the assigning US Bank has
retained some portion of its obligations hereunder, a new Note or Notes to the
order of the assigning US Bank in the amounts equal to the amounts retained by
it hereunder. Such new Notes shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal amount equal to the
aggregate principal amount of the surrendered Notes, shall be dated the
effective date of such in Assignment and Acceptance and shall otherwise be
substantially the form of the assigned Notes. Within five (5) days of issuance
of any new Notes pursuant to this (S)20.4, the applicable Borrowers shall
provide a certificate to the assignee Bank and the assignor Bank, if applicable,
entitling such Banks to rely with respect to the new Notes on the resolutions
authorizing the execution and delivery of the surrendered Notes as conclusively
authorizing the execution and delivery of the new Notes. The surrendered Notes
shall be cancelled and returned to the Borrowers.
20.5. Participations. Each Bank may sell participations to one or more
--------------
banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents; provided
--------
that (i) any such sale or participation shall not affect the rights and duties
of the selling Bank hereunder to the Borrowers and (ii) the only rights granted
to the participant pursuant to such participation arrangements with respect to
waivers, amendments or modifications of the Loan Documents shall be the rights
to approve waivers, amendments or modifications that would reduce the principal
of or the interest rate on any Loans, extend the term or increase the amount of
the Commitment of such Bank as it relates to such participant, reduce the amount
of any Commitment Fees or Letter of Credit Fees to which such participant is
entitled or extend any regularly scheduled payment date for principal or
interest.
<PAGE>
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20.6. Disclosure. The Borrowers agree that in addition to disclosures
----------
made in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
- --------
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation.
20.7. Assignee or Participant Affiliated with the Borrowers. If any
-----------------------------------------------------
assignee Bank is an Affiliate of any of the Borrowers or any of their
Subsidiaries, then any such assignee Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or other
modifications to any of the Loan Documents or for purposes of making requests to
the Administrative Agent pursuant to (S)14.1 or (S)14.2, and the determination
of the Majority Banks shall for all purposes of this Credit Agreement and the
other Loan Documents be made without regard to such assignee Bank's interest in
any of the Loans. If any Bank sells a participating interest in any of the Loans
or Reimbursement Obligations to a participant, and such participant is a
Borrower or an Affiliate of any of the Borrowers, then such transferor Bank
shall promptly notify the Administrative Agent of the sale of such
participation. A transferor Bank shall have no right to vote as a Bank hereunder
or under any of the other Loan Documents for purposes of granting consents or
waivers or for purposes of agreeing to amendments or modifications to any of the
Loan Documents or for purposes of making requests to the Administrative Agent
pursuant to (S)14.1 or (S)14.2 to the extent that such participation is
beneficially owned by any Borrower or any Affiliate of any Borrower, and the
determination of the Majority Banks shall for all purposes of this Credit
Agreement and the other Loan Documents be made without regard to the interest of
such transferor Bank in the Loans to the extent of such participation.
20.8. Miscellaneous Assignment Provisions. Any assigning Bank shall
-----------------------------------
retain its rights to be indemnified pursuant to (S)18 with respect to any claims
or actions arising prior to the date of such assignment. If any assignee of a US
Bank is not incorporated under the laws of the United States of America or any
state thereof, it shall, on or before the date on which it becomes a party to
this Credit Agreement, deliver to the US Borrower and the Administrative Agent
the certification referred to in (S)6.2.2(b). If any Administrative Agent or the
Issuing Bank transfers all of its interest, rights and obligations under this
Credit Agreement, the Administrative Agent shall, in consultation with the
Borrowers and with the consent of the Borrowers and the Majority Banks, appoint
another Bank to act as a Administrative Agent or Issuing Bank, as the case may
be, hereunder. Anything contained in this (S)20 to the contrary notwithstanding,
any Bank may at any time pledge all or any portion of
<PAGE>
-147-
its interest and rights under this Credit Agreement (including all or any
portion of its Notes) to any of the twelve Federal Reserve Banks organized under
(S)4 of the Federal Reserve Act, 12 U.S.C. (S)341. No such pledge or the
enforcement thereof shall release the pledgor Bank from its obligations
hereunder or under any of the other Loan Documents.
20.9. Assignment by Borrower. None of the Borrowers shall assign or
----------------------
transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Banks.
21. NOTICES, ETC.
------------
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, sent by overnight courier, or sent
by telegraph, telecopy, facsimile or telex and confirmed by delivery via courier
or postal service, addressed as follows:
(a) if to the US Borrower or any US Guarantor, at Genesee &
Wyoming Inc., 71 Lewis Street, Greenwich, CT, Attention: Mark W.
Hastings, Treasurer and Chief Financial Officer, or at such other
address for notice as the US Borrower shall last have furnished in
writing to the Person giving the notice;
(b) if to the Australian Borrower or an Australian Guarantor,
at 71 Lewis Street, Greenwich, Connecticut 06830, Attn: Mark W.
Hastings, or at such other address for notice as the Australian
Borrower shall last have furnished in writing to the Person giving the
notice;
(c) if to the Canadian Borrower or any Canadian Guarantor, at
71 Lewis Street, Greenwich, Connecticut 06830, Attn: Mark W. Hastings,
or such other address for notice as the Canadian Borrower shall last
have furnished in writing to the Person giving notice;
(d) if to the Mexican Borrower or any Mexican Guarantor, at 71
Lewis Street, Greenwich, Connecticut 06830, Attn: Mark W. Hastings, or
such other address for notice as the Mexican Borrower shall last have
furnished in writing to the Person giving notice;
(e) if to the Administrative Agent, at 100 Federal Street,
Transportation Division, Boston, Massachusetts 02110, USA, Attention:
Dexter Freeman, Director, or such other address for notice as the
Administrative Agent shall last have furnished in writing to the Person
giving the notice;
(f) if to the Australian Agent, at an address to be designated
to the Australian Borrower and the Administrative Agent, or such other
<PAGE>
-148-
address for notice as the Australian Agent shall last have furnished in
writing to the Person giving the notice; and
(g) if to any Bank, at such Bank's address set forth on
Schedule II hereto, or such other address for notice as such Bank shall
-----------
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
22. GOVERNING LAW.
-------------
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS, ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF THE
BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH
OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWERS BY MAIL AT THE ADDRESS SPECIFIED IN (S)21.
23. HEADINGS.
--------
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
24. COUNTERPARTS.
------------
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
25. ENTIRE AGREEMENT, ETC.
---------------------
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
<PAGE>
-149-
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in (S)27.
26. WAIVER OF JURY TRIAL, ETC.
-------------------------
Each of the Borrowers and the Guarantors hereby waives its right to a
jury trial with respect to any action or claim arising out of any dispute in
connection with this Credit Agreement, the Notes or any of the other Loan
Documents, any rights or obligations hereunder or thereunder or the performance
of which rights and obligations. Except as prohibited by law, each of the
Borrowers and the Guarantors hereby waives any right it may have to claim or
recover in any litigation referred to in the preceding sentence any special,
exemplary or punitive damages or any damages other than, or in addition to,
actual damages and waives all suretyship defenses generally. Each of the
Borrowers and the Guarantors (i) certifies that no representative, agent or
attorney of any Bank or such Agent has represented, expressly or otherwise, that
such Bank or such Agent would not, in the event of litigation, seek to enforce
the foregoing waivers and (ii) acknowledges that the Agents and the Banks have
been induced to enter into this Credit Agreement, the other Loan Documents to
which it is a party by, among other things, the waivers and certifications
contained herein.
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
----------------------------------
Any consent or approval required or permitted by this Credit Agreement
to be given by the Banks may be given, and any term of this Credit Agreement,
the other Loan Documents or any other instrument related hereto or mentioned
herein may be amended, and the performance or observance by any of the Borrowers
or any of their Restricted Subsidiaries of any terms of this Credit Agreement,
the other Loan Documents or such other instrument or the continuance of any
Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Borrowers and the written consent of the Majority Banks.
Notwithstanding the foregoing, the rates of interest on the Loans (other than
interest accruing pursuant to (S)6.10.2 following the effective date of any
waiver by the Majority Banks of the Default or Event of Default relating
thereto) or the amount of the Commitment Fees or Letter of Credit Fees may not
be decreased without the written consent of each Bank affected thereby; the term
of the Loans, the amount of the Commitment of any Bank, the timing of payment of
any principal, interest, fees, and Reimbursement Obligations may not be changed
without the written consent of the Borrowers and of each Bank affected thereby;
principal may not be forgiven without the written consent of the Borrowers and
the written consent of each Bank affected thereby; (S)20.9 may not be amended
without the written consent of each Bank affected thereby; the release of a
substantial part of the Collateral (other than in accordance with (S)10.5.2)
shall not be permitted without the consent of all the Banks; the release of any
Guarantor shall not be permitted without the consent of the Majority Banks,
provided that the release of any Guarantor having total assets in excess of ten
- --------
percent (10%) of the consolidated total assets of the
<PAGE>
-150-
Borrowers and their Restricted Subsidiaries shall not be permitted without the
consent of all of the Banks; the Maturity Date may not be postponed without the
written consent of each Bank affected thereby; this (S)27 and the definition of
Majority Banks may not be amended, without the written consent of all of the
Banks; and the amount of the Agents' Fee or any Letter of Credit Fees or any
other fees payable for the Agents' account and (S)16 may not be amended without
the written consent of the applicable Agents. No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon. No course of dealing or delay or omission on the part of any Agent or
any Bank in exercising any right shall operate as a waiver thereof or otherwise
be prejudicial thereto. No notice to or demand upon the Borrower shall entitle
the Borrower to other or further notice or demand in similar or other
circumstances.
28. SEVERABILITY.
------------
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
29. PARI PASSU TREATMENT.
--------------------
(a) Subject to (S)31 and notwithstanding anything to the
contrary set forth herein, each payment or prepayment of principal and
interest received after the occurrence of an Event of Default hereunder
shall be distributed pari passu among the Banks, in accordance with the
aggregate outstanding principal amount of the Obligations owing to each
Bank divided by the aggregate outstanding principal amount of all
Obligations.
(b) Following the occurrence and during the continuance of any
Event of Default, each Bank agrees that if it shall, through the
exercise of a right of banker's lien, setoff or counterclaim against
any Borrower (pursuant to (S)15 or otherwise), including a secured
claim under Section 506 of the Bankruptcy Code or other security or
interest arising from or in lieu of, such secured claim, received by
such Bank under any applicable bankruptcy, insolvency or other similar
law or otherwise, obtain payment (voluntary or involuntary) in respect
of the Notes, Loans, and other Obligations held by it as a result of
which the unpaid principal portion of the Notes, Loans and the
Obligations held by it shall be proportionately less than the unpaid
principal portion of the Notes, Loans and Obligations held by any other
Bank, it shall be deemed to have simultaneously purchased from such
other Bank a participation in the Notes, Loans and Obligations held by
such other Bank, so that the aggregate unpaid principal amount of the
Notes, Loans, Obligations and participations in Notes, Loans and
Obligations held by each Bank shall
<PAGE>
-151-
be in the same proportion to the aggregate unpaid principal amount of
the Notes, Loans and Obligations then Outstanding as the principal
amount of the Notes, Loans and other Obligations held by it prior to
such exercise of banker's lien, setoff or counterclaim was to the
principal amount of all Notes, Loans and other Obligations outstanding
prior to such exercise of banker's lien, setoff or counterclaim;
provided, however, that if any such purchase or purchases or
--------
adjustments shall be made pursuant to this (S)29 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases
or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustments restored without interest.
(c) Each Borrower expressly consents to the foregoing
arrangements and agrees that any Person holding such a participation in
the Notes, Loans and the Obligations deemed to have been so purchased
may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by such Borrower
to such Person as fully as if such Person had made a Loan directly to
such Borrower in the amount of such participation.
(d) Nothing contained in this (S)29 shall impair, as between
any Borrower and any Bank, the obligation of such Borrower to pay to
such Bank all amounts payable in respect of such Bank's Notes, Loans,
and other Obligations as and when the same shall become due and payable
in accordance with the terms thereof.
30. TRANSITIONAL ARRANGEMENTS.
-------------------------
30.1. Prior Credit Agreement Superseded. On the Closing Date, this
---------------------------------
Credit Agreement shall supersede the Prior Credit Agreement in its entirety,
except as provided in this (S)30. On the Closing Date, the rights and
obligations of the parties evidenced by the Prior Credit Agreement shall be
evidenced by the Credit Agreement and the other Loan Documents, the "Loans" as
defined in the Prior Credit Agreement shall be converted to US Revolving Credit
Loans as defined herein and the Existing Letters of Credit issued by the
Administrative Agent for the account of the US Borrower or any of its Restricted
Subsidiaries prior to the Closing Date shall converted into Letters of Credit
under this Credit Agreement.
30.2. Return and Cancellation of Prior Notes. As soon as reasonably
--------------------------------------
practicable after the Closing Date, the Banks under the Prior Credit Agreement
will promptly return to the US Borrower, marked "Substituted" or "Cancelled", as
the case may be, any notes held by the Banks pursuant to the Prior Credit
Agreement.
30.3. Interest and Fees under Superseded Agreement. All interest and
--------------------------------------------
fees and expenses, if any, owing or accruing under or in respect of the Prior
Credit Agreement through the Closing Date shall be calculated as of the Closing
Date (pro rated in the case of any fractional periods), and shall be paid on the
<PAGE>
-152-
Closing Date. Commencing on the Closing Date, the Commitment Fees hereunder
shall be payable by the Borrowers to the Agents for the account of the Banks in
accordance with (S)2.2.
31. Distribution of Collateral Proceeds.
-----------------------------------
In the event that, following the acceleration of any of the
Obligations, any of the Agents or any Bank, as the case may be, receives any
monies in connection with the enforcement of any the Security Documents, or
otherwise with respect to the realization upon any of the Collateral, such
monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agents for or in respect of all reasonable costs,
expenses, fees, disbursements and losses which shall have been incurred
or sustained by the Agents in connection with the collection of such
monies by the Agents, for the exercise, protection or enforcement by
the Agents of all or any of the rights, remedies, powers and privileges
of the Agents under this Credit Agreement or any of the other Loan
Documents or in respect of the Collateral or in support of any
provision of adequate indemnity to the Agents against any taxes or
liens which by law shall have, or may have, priority over the rights of
the Agents to such monies;
(b) Second, to all other Obligations in accordance with (S)29;
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Banks and the Agents
of all of the Obligations, to the payment of any obligations required
to be paid pursuant to (S)9-504(1)(c) of the Uniform Commercial Code of
the Commonwealth of Massachusetts and any Australian, Canadian or
Mexican equivalent; and
(d) Fourth, the excess, if any, shall be returned to the
Borrowers or to such other Persons as are entitled thereto.
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
BORROWERS: GENESEE & WYOMING INC.
/s/ Mark W. Hastings
By:___________________________________
Name: Mark W. Hastings
Title: Vice President and Treasurer
and Chief Financial Officer
AUSTRALIA SOUTHERN
RAILROAD PTY. LIMITED,
ACN 079 444 296,
/s/ Mortimer B. Fuller III
By:__________________________________
Name: Mortimer B. Fuller III
Title: Chairman, Board of Directors
QUEBEC GATINEAU RAILWAY INC.
/s/ Mark W. Hastings
By:__________________________________
Name: Mark W. Hastings
Title: Treasurer
COMPANIA DE FERROCARRILES CHIAPAS -
MAYAB, S.A. de C.V.
/s/ Mark W. Hastings
By:_________________________________
Name: Mark W. Hastings
Title: Financial Director
<PAGE>
BANKS: BANKBOSTON, N.A, individually, as
Administrative Agent and as Issuing Bank
/s/ Dexter Freeman
By:_________________________________
Name: Dexter Freeman
Title: Director
THE FIRST NATIONAL BANK OF
CHICAGO, individually and as
Documentation Agent and as Australian
Agent
/s/ Aaron Lanski
By:_________________________________
Name: Aaron Lanski
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
/s/ W. Brown
By:_________________________________
Name: W. J. Brown
Title: Vice President
FIRST UNION NATIONAL BANK
/s/ Theresa Marie Smith
By:_________________________________
Name: Theresa Marie Smith
Title: Vice President
FLEET BANK, N.A.
/s/ Charles M. Sabino
By:_________________________________
Name: Charles M. Sabino
Title: Senior Vice President
<PAGE>
LaSALLE BANK NATIONAL ASSOCIATION
/s/ Terri A. Maurer
By:_________________________________
Name: Terri A. Maurer
Title: Vice President
US GUARANTORS: BRADFORD INDUSTRIAL RAIL, INC.
/s/ David J. Collins
By:_________________________________
Name: David J. Collins
Title: Vice President
THE DANSVILLE AND MOUNT
MORRIS RAILROAD COMPANY
/s/ David J. Collins
By:_________________________________
Name: David J. Collins
Title: President
GENESEE & WYOMING RAILROAD
SERVICES, INC.
/s/ David J. Collins
By:_________________________________
Name: David J. Collins
Title: Vice President / Secretary
<PAGE>
GENESEE AND WYOMING
RAILROAD COMPANY
GWI RAIL MANAGEMENT
CORPORATION
GWI CANADA, INC.
ROCHESTER & SOUTHERN
RAILROAD, INC.
ALLEGHENY & EASTERN
RAILROAD, INC.
BUFFALO & PITTSBURGH
RAILROAD, INC.
PITTSBURG & SHAWMUT RAILROAD,
INC.
LOUISIANA & DELTA
RAILROAD, INC.
ILLINOIS & MIDLAND RAILROAD, INC.
PORTLAND & WESTERN
RAILROAD, INC.
WILLAMETTE & PACIFIC
RAILROAD, INC.
GOLDEN ISLES TERMINAL
RAILROAD, INC.
SAVANNAH PORT TERMINAL
RAILROAD, INC.
CAROLINA COASTAL RAILWAY, INC.
COMMONWEALTH RAILWAY,
INCORPORATED
CORPUS CHRISTI TERMINAL
RAILROAD, INC.
RAIL LINK, INC.
TALLEYRAND TERMINAL RAILROAD
COMPANY, INC.
/s/ Mark W. Hastings
By:_________________________________
Name: Mark W. Hastings
Title: Treasurer
GWI LEASING CORPORATION
/s/ Mark W. Hastings
By:_________________________________
Name: Mark W. Hastings
Title: President / Treasurer
<PAGE>
AUSTRALIAN
GUARANTORS: GENESEE & WYOMING
AUSTRALIA PTY. LIMITED
/s/ Mortimer B. Fuller III
By:________________________________
Name: Mortimer B. Fuller III
Title: Chairman, Board of Directors
MEXICAN
GUARANTORS: G.W. MEXICO, S.A. de C.V.
/s/ Mark W. Hastings
By:________________________________
Name: Mark W. Hastings
Title: Financial Director
CANADIAN
GUARANTORS: GENESEE RAIL-ONE INC.
/s/ Mark W. Hastings
By:________________________________
Name: Mark W. Hastings
Title: Treasurer
MIRABEL RAILWAY INC.
/s/ Mark W. Hastings
By:________________________________
Name: Mark W. Hastings
Title: Treasurer
HURON CENTRAL RAILWAY INC.
/s/ Mark W. Hastings
By:________________________________
Name: Mark W. Hastings
Title: Treasurer
RAIL-ONE INC.
/s/ Mark W. Hastings
By:________________________________
Name: Mark W. Hastings
Title: Treasurer
<PAGE>
EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT FOR PERSONALTY UNDER TITLE QUALIFICATION, ENTERED
INTO BY THE FEDERAL GOVERNMENT OF THE UNITED MEXICAN STATES (HEREINAFTER
"SELLER") THROUGH THE FEDERAL EXECUTIVE BRANCH BY WAY OF THE COMMUNICATIONS AND
TRANSPORTATION DEPARTMENT, REPRESENTED BY MARIA DE LA LUZ RUIZ MARISCAL
==============================
(HEREINAFTER THE "DEPARTMENT"), AS PARTY OF THE FIRST PART; COMPANIA DE
===========
FERROCARRILES CHIAPAS-MAYAB, S.A. DE C.V. (HEREINAFTER "BUYER"), REPRESENTED
=========================================
HEREIN BY CARLOS EDUARDO CORNEJO JURGENSEN, AS PARTY OF THE SECOND PART; AND, AS
================================
PARTY OF THE THIRD PART, FERROCARRILES NACIONALES DE MEXICO (HEREINAFTER
"FERRONALES"), REPRESENTED HEREIN BY RAMIRO SOSA LUGO; IN ACCORDANCE WITH THE
================
FOLLOWING RECITALS AND CLAUSES:
RECITALS
I. Seller hereby represents through the Department that:
(a) It holds good title to the personalty and equipment described in Exhibit 1
to this Agreement, consisting in the office furniture and equipment, the shop
machinery, the locomotive and trailer stock and railroad machinery, and the
radio communications equipment with which the Chiapas-Mayab Railroad operates
(hereinafter the "Personalty and Equipment"), forming an integral part thereof,
which are free and clear of any encumbrance and title restriction as of this
date.
<PAGE>
By means of a Call for Bids and Tender Terms published in the Official Gazette
of the Federation on March 24, 1999, as amended on April 29 and June 18, 1999,
the concession for the operation and exploitation of the Chiapas and Mayab short
lines was tendered, including the delivery of public railroad transportation and
the sale of assets related thereto, which as a whole constitute a productive
Economic Unit, following the relevant approval by the Interdepartmental
Commission for Privatization as regards the opening of the Mexican Railroad
System Short Lines to investment capital (hereinafter the "Call for Bids").
b) COMPANIA DE FERROCARRILES CHIAPAS-MAYAB, S.A. DE C.V. (Winning Bidder)
=====================================================
won the aforementioned Bid and was advised thereof through Letter No. 717 ,
dated July 9, 1999, signed by Dr. Aaron Dychter Poltolarek, Undersecretary of
Transportation and Chairman of the Restructuring Committee for the Mexican
Railroad System (see Exhibit 2).
c) By virtue of the above, it is Seller's desire to sell the Personalty and
Equipment indicated in Section One of this Agreement to Buyer, on the terms and
conditions hereunder provided.
d) Its legal representative is authorized to enter into this Agreement as
evidenced by the documentation appended to Exhibit 3 hereto, which are deemed an
integral part hereof.
II. Buyer represents that:
a) It is a company incorporated under the laws of the United Mexican States, as
evidenced by Public Instrument 37,606 dated March 25, 1999, executed in the
presence of Rogelio Rodrigo Orozco Perez, Esq., Notary Public No. 53 in and for
the City of Mexico, in the Federal District, recorded in the Public Registry
for Property and Commerce in folio No. 250,283. Exhibit 4.
<PAGE>
b) It won the public bid in connection with the awarding of a concession for
the operation and exploitation of the general railroad communications system
corresponding to the Chiapas and Mayab short lines, as well as the delivery of
Public Railroad Transportation Service as operated thereon.
On the terms of the Call for Bids and the concession which the Federal
Government will grant in respect of the Chiapas and Mayab Short Lines, Buyer
shall perform, within 12 months following the initial concession date, the
urgent repair works specified in Exhibit 7-Bis of the Concession Agreement, a
====
copy of which is attached as Exhibit 9 hereto, the minimum aggregate value of
which amounts to $ 91'600,000.00 (Ninety one million six hundred thousand pesos
00/100 Local Currency), which shall be used as payment for the Personalty and
Equipment hereunder; provided, however, that if the cost of the urgent works is
higher, it shall not be revised downward to the price.
c) It is familiar with the list of Personalty and Equipment sold hereunder,
being further aware that they are used and that, in as much as title thereto is
conveyed to Buyer and that the same are conveyed to Buyer in any of the forms
indicated herein by Seller, Ferronales shall continue using them in the delivery
of the applicable railroad service. It is familiar with the condition in which
said Personalty and Equipment are found and, if applicable, the reasons why they
are undergoing repairs, the scope of said repair work and the technical
characteristics thereof.
d) It is legally, technically and financially able to be bound under the terms
of this Agreement.
e) Its representative is endowed with sufficient authority to bind Buyer on the
terms hereof, as evidenced by means of Public Instrument No. 37,659, dated
April 22, 1999, executed in the presence of Rogelio Rodrigo Orozco Perez, Esq.,
Notary Public No. 53 in
<PAGE>
and for the City of Mexico, in the Federal District, recorded with the
applicable Public Registry of Property and Commerce Exhibit 5.
III. Ferronales represents that:
a) It is a decentralized public entity of the Federal Government, established
under the Act of December 11, 1948, published in the Official Gazette of the
Federation on May 30, 1948, the legal existence of which is acknowledged and
continued under its new organic law published in the Official Gazette of the
Federation on January 14, 1985.
b) By means of a grant agreement entered into prior to the date hereof and
following the applicable authorization of its Board of Directors, it conveyed
title to the Personalty and Equipment hereunder to the Federal Government,
Ferronales remaining thereinafter in charge of the operation thereof through the
date of their effective delivery to Buyer hereunder. The above grant was
authorized by the Department of Administrative Oversight and Development.
Exhibit 6.
c) Seller has instructed Ferronales to deliver the Personalty and Equipment
hereunder to Buyer on the terms and conditions herein provided, and that until
said delivery is completed, it shall continue operating the same in order not to
suspend the public service delivered through said Personalty and Equipment, in
the understanding that Buyer is capable of delivering the respective railroad
services and shall commence the effective term of the Concession Agreement.
d) It is legally capable of binding itself under the terms of this Agreement.
e) Ramiro Sosa Lugo signs these presents in his capacity as legal representative
of the entity, which capacity is evidenced by means of Public Instrument No.
53,423, dated May 26, 1998, executed in the presence of Miguel Alessio Robles,
Esq., Notary Public No. 19
<PAGE>
in and for the City of Mexico, Federal District which capacity has not been
revoked nor limited in any manner whatsoever. Exhibit 7.
In consideration of the above recitals, the parties agree to be bound by the
terms of the following:
CLAUSES
ONE: PURPOSE. Seller hereby conveys, with qualified title and free and clear
of any encumbrances, to Buyer, who acquires under said terms, the Personalty and
Equipment consisting in the office furniture and equipment; the shop machinery;
the locomotive and trailer stock and railroad machinery, and the radio
communications equipment with which the Chiapas-Mayab Railroad operates and
which are indicated in Exhibit 1.
The Personalty and Equipment indicated in Exhibit 1 shall be sold with all
things factual and legal are attached thereto, as indicated in said Exhibit.
TWO: PRICE. The price for the purchase and sale of the Personalty and
Equipment indicated in the above Section is stated in the sum of $
116'084,888.50 (One hundred sixteen million eighty four thousand one hundred
eighty eight pesos 50/100 Local Currency).
THREE: TERMS OF PAYMENT. As of this date, on October 20, 1999, at the latest,
Buyer has delivered to the Federal Treasury, by means of an electronic wire
transfer, the sum of $ 24'484,888.50 (Twenty four million four hundred eighty
four thousand eight hundred eighty eight pesos 50/100 Local Currency), ("Initial
payment").
The outstanding balance on this price, amounting to the sum of $ 91,600,000.00
(ninety-one million six hundred thousand Mexican Pesos) shall be paid by Buyer
upon the passage
<PAGE>
of one year from the execution date of this Agreement, earning interest as
provided in paragraph one of Clause Five. The above term is compulsory for
Buyer, who may only pay said balance prior to the passage of one year from the
execution date of this Agreement in case Seller shall have accepted hand-over of
all the works referred to in the following Clause.
FOUR: URGENT WORKS. Buyer may pay the balance on the price with the sum total
of the works referred to in numeral 2.4 of Exhibit 7-B to the Concession
Agreement, which is attached as Exhibit 9 hereto and forms an integral part
hereof.
By virtue of the fact that performance of said works is the reason why Seller
enters into this Agreement, payment of the balance on the price as herein
provided shall only apply if all the works are complete within one year from the
execution date of this Agreement, provided that the works be performed in
accordance with the works schedule authorized on the terms set forth in numeral
2.4 of the Concession Agreement and Exhibit 7-B thereto, and upon acceptance of
said works by Seller. Such work schedule, after being authorized by the
Department, will become a part of the above mentioned Exhibit 7-B.
The above provided, however, that : (i) if the cost of performing the works is
lower, Buyer shall perform additional works above and beyond those provided in
Exhibit 7-Bis to the Concession Agreement until they amount to an even sum with
the outstanding balance, and (ii) if the cost of the works is higher than the
balance indicated in Clause Three, second paragraph, said excess cost shall be
borne by Buyer without any claim accruing in Buyer's favor against Seller.
Upon completion of the works and their acceptance by Seller, Seller shall deem
the price balance as paid and the interest indicated in the following Clause
shall not accrue.
FIVE: INTEREST. The outstanding balance on the price shall accrue, starting on
the execution date of this Agreement and through full payment of the said
balance, interest at
<PAGE>
a rate equivalent to the mathematical daily average of the 28-day Equilibrium
Inter-Bank Interest Rate (TIIE) published in the Official Gazette of the
Federation during said period by the Bank of Mexico, or in lieu thereof at any
rate replacing the same. A 360-day year shall be used to calculate interest.
SIX: SECURITY. As security for the payment of the balance on the price, on the
date when the Initial Payment is made, at the latest, Buyer shall enter into an
irrevocable security trust indenture with Nacional Financiera SNC, on the terms
provided herein and to the Department's satisfaction, which agreement is
attached as Exhibit 10 hereto, contributing an initial sum of:
a) $ 91,600,000.00 (ninety-one million six hundred thousand Mexican Pesos)/1/,
which corresponds to the balance on the price and shall be used in performing
the works or, if applicable, to pay the outstanding price balance on the terms
hereof, in cash; and
b) $ 9,160,000.00 (nine million one hundred and sixty thousand Mexican
Pesos)/2/, equivalent to 10% of the above sum, to be used as liquidated damages
in case not all of the works are performed or if the same are not accepted by
Seller.
The aforementioned sum shall be part of the trust, as well as the proceeds
thereof. The cost of the trust shall be paid through said proceeds.
SEVEN: PERFORMANCE OF THE WORKS. Buyer shall perform the works with a debit to
the trust indicated in paragraph a) of the above Clause. For said purposes, the
trustee company shall deliver the funds as follows:
- --------------------------------------
/1/ In the case of the Oaxaca Railroad, the sum shall be $ 34,200,000.00
(thirty-four million two hundred thousand Mexican Pesos).
/2/ In the case of the Oaxaca Railroad, the sum shall be $ 3,420,000 (three
million four hundred and twenty thousand Mexican Pesos).
<PAGE>
a) Buyer shall serve written notice to Seller, asking for authorization to use
the funds, indicating the stage to which they pertain per the authorized works
schedule and for up to an amount equivalent to the percentage that corresponds
to the applicable stage, and starting with stage two, said request shall be
accompanied by a report evidencing completion of the previous stage, with an
itemized list of the works performed.
b) Seller, within 10 business days after receiving the aforementioned request,
shall advise its acceptance and authorization or, otherwise, its rejection. If
Seller accepts, Seller shall advise the trustee in writing in connection
therewith, indicating the amount of funds which may be delivered to Buyer and
the stage to which they shall be destined.
If Seller shall fail to serve the above notice within the prescribed term, the
timeline for the works shall be extended commensurate to the delay incurred by
Seller in serving said notice to Buyer.
c) Seller shall under no circumstances authorize the delivery of funds if any
funds shall have been previously delivered for the performance of a stage which
shall not be yet completed and accepted by Seller. Buyer hereby authorizes
Seller to supervise the performance of said works directly or through a third
party.
In case funds shall be received by Buyer to perform any stage and Buyer shall
fail to commence the respective works other than due to an act of God or force
majeure or shall suspend their performance and thereby materially affect the
timetable of the works schedule, Buyer agrees that said event shall be deemed as
its decision not to cover the outstanding balance of the price under Clause
Four, and shall consequently pay said outstanding balance on the terms provided
in Clauses Nine and Ten.
Seller's supervision in accordance with paragraph c) shall be conducted without
prejudice to the Department's authority under the Railroad Service Act, the
Regulations thereto, the Concession Agreement and other applicable provisions.
<PAGE>
EIGHT: TITLE QUALIFICATION. The parties agree that Seller qualifies conveyance
of title to the Personalty and Equipment hereunder as follows:
a) Upon delivery of the Personalty and Equipment under Clause Ten hereof,
Seller shall qualify conveyance of title to the Personalty and Equipment which
shall have a value equivalent to said outstanding price balance.
b) Seller shall release its qualification on the title to part of the
Personalty and Equipment commensurate first, to the Initial Price and then, to
the value allocated to the stages of the completed works and which it shall have
accepted, serving written notice thereof upon Buyer.
c) Seller may release its qualification on the title to the Personalty and
Equipment prior to payment of the outstanding balance provided that Buyer shall
previously guarantee said payment by means of a letter of credit opened with a
credit corporation to the Department's satisfaction, payable on sight,
unconditional and irrevocable, confirmed and to the benefit of the Federal
Treasury, in an amount equivalent to 100% (one hundred percent) of the
personalty, title to which shall remain qualified at the date of said request.
Any default by Buyer under the terms of Clause Three above will entitle Seller
to cash the letter of credit, the amount of which may be reduced as the work
stages are completed and accepted by Seller.
NINE: LIQUIDATED DAMAGES. Buyer is aware of the fact that the reason why Seller
enters into this Agreement is that Buyer shall perform the works referred to in
Exhibit 9 hereto. Consequently, Buyer agrees to pay Seller, in case it fails to
complete all of the aforementioned works within the compulsory term indicated in
Clause Four above other than by reason of an act of God or force majeure,
liquidated damages in the equivalent of 10% of the outstanding balance on the
price indicated in paragraph b) of
<PAGE>
Clause Six above. In case that liquidated damages are applicable, Seller shall
refund Buyer for the interest earned by said amount under the trust indenture.
TEN: PAYMENT PROCEDURE UPON FAILURE TO PERFORM THE WORKS. In case that not all
of the works are performed or accepted, or if they are only performed in part,
and in addition to the liquidated damages provided hereunder, Buyer shall pay
the interest referred to in the first paragraph of Clause Five, calculated, in
connection with the outstanding balance of $ 91,600,000 (ninety-one million six
hundred thousand Mexican Pesos), starting on the execution date of this
Agreement through the date of actual payment. The foregoing shall apply
provided that no authorization shall have been given to extend said term to
complete the works in accordance with Exhibit 7-Bis
In case that Buyer shall have only performed the works schedule in part, Seller
shall apply to the payment of the outstanding balance and interest determined in
accordance with the above Clause, only the value of the works performed and
accepted by Seller in accordance with the following:
a) The value of each stage shall be deemed as the costs anticipated in the
works schedule as corresponding to the works actually performed.
b) Seller shall apply said sums to payment of liquidated damages, the interest
earned pursuant to paragraph one of Clause Five and the outstanding price
balance, in this order.
Buyer agrees to issue instructions to the trustee, upon establishment of the
trust referred to in Clause Six, in order that said company proceed to pay the
liquidated damages, the interest referred to in paragraph one of Clause Five and
the outstanding price balance, in that order, with a debit to the trust funds
and without any need for a court order, upon deduction of the value of the
stages completed as hereunder provided. Upon payment of
<PAGE>
the foregoing, the Department shall authorize the trust company to deliver to
Buyer any sums remaining in the trust.
In case that the trust funds shall be insufficient following deduction of the
value of the completed stages pursuant to this Clause, Seller shall require
Buyer to deliver payment for the outstanding balance within five business days
following the date of said requirement. If Buyer fails to deliver payment
within said term, Seller shall enforce the title qualification or cash the
letter of credit, as applicable, and Buyer agrees to pay late interest in the
equivalent of 1.5 times the interest rate indicated in the first paragraph of
Clause Five above starting of the due date of said payment and through the
actual date of payment.
Until such time as Buyer shall pay Seller, through the Federal Treasury, the
principal, including the Initial Payment interest, liquidated damages and any
other sum to which it may be entitled hereunder, Seller shall continue to
qualify conveyance of title to the Personalty and Equipment not theretofore
released, on the terms of article 2312 of the Federal District Civil Code and
Federal Civil Code.
The provisions in this Clause are notwithstanding any sanctions as may be
applicable under the Concession Agreement and other applicable provisions.
Upon completion of the works to the satisfaction of Seller, Seller shall
authorize the trust company to deliver to Buyer such trust fund interests as are
earned in connection with the sums deposited with regard to the value of the
works indicated in paragraph a) of Clause Six, the 10% additional deposit made
in accordance with paragraph b) of this Clause, plus interest thereon, and the
letter of credit or the qualification of conveyance of title to the applicable
Personalty and Equipment shall be released, as the case may be.
ELEVEN: DELIVERY. The parties agree that conveyance of title to the Personalty
and Equipment shall be effected on the earlier of the final hand-over
certificate execution date or August 30, 1999.
<PAGE>
Seller shall deliver the Personalty and Equipment to Buyer through Ferronales on
the terms established in the respective hand-over certificate, and said delivery
shall take place at the offices and shops where said Personalty and Equipment
shall be found, delivery thereof being consequently physical.
The foregoing is notwithstanding any agreements between the parties to make
physical deliveries at locations other than those mentioned above.
The parties expressly agree that the hand-over process for the Personalty and
Equipment may start on August 18, 1999, which process shall be completed on or
before August 30, 1999. Seller may authorize extensions to said terms if it
deems so advisable.
Buyer shall not be obligated to receive the Personalty and Equipment prior to
the first date indicated hereinabove, unless so agreed in writing with Seller.
If Buyer fails to receive the Personalty and Equipment which Seller shall
deliver to Buyer or which it shall advise Buyer in the sense that they are ready
for delivery on such date or any subsequent date, the provisions of Clauses
Twelve, Seventeen, Eighteen and Twenty of this Agreement shall apply, without
prejudice to any additional liabilities in which Buyer shall incur due to its
delay in receiving the Personalty and Equipment.
The parties agree that the Personalty and Equipment shall be delivered by
Ferronales in "AS-IS" condition at the moment of delivery, notwithstanding the
provisions in Clause Seventeen.
In any case, the hand-over of each unit of Personalty and Equipment shall be
effected by issuing the applicable hand-over certificates, which shall be signed
by the representatives of Buyer and Ferronales. In such case, possession of the
applicable Personalty and Equipment shall pass upon the execution of the
respective partial certificates and the property of such personality shall be
transferred as established in Clause Eight.
<PAGE>
The hand-over certificates shall include a listing of the Personalty and
Equipment conveyed at such time to Buyer, stating the general condition thereof.
In the case of fuels and lubricants, the volume thereof shall be determined at
the time of the hand-over procedure, and Buyer agrees to pay Seller the going
market price effective as of said date therefor. Payment shall be made within
10 calendar days following the date of the respective hand-over certificate.
In the case of fuels and lubricants previously incorporated into the Personalty
and Equipment, they shall be deemed a part thereof.
TWELVE: DELIVERY OF DOCUMENTS. At the respective hand-over ceremony, Seller
shall deliver to Buyer the documentation accrediting title to the Personalty and
Equipment and other documentation in connection therewith as may be in Seller's
possession.
THIRTEEN: RECORDING OF AGREEMENT. In order for this Agreement and its
termination clause to be enforceable against third parties as provided in
article 2312 of the Federal District Civil Code and Federal Civil Code, Seller
may record the same with the Public Registry for Property and Commerce of Mexico
City on behalf of Buyer. Buyer agrees to instruct the trust company, upon
establishing the trust, in order that it may draw funds from said trust to cover
recording and notarization expenses as hereinabove provided if applicable.
FOURTEEN: LOSS OF PERSONALTY AND EQUIPMENT. The parties agree that Seller
shall be held liable for any loss of and damage to the Personalty and Equipment
through the execution date of the hand-over certificate in connection therewith,
as indicated in Clause Eleven above, unless delivery thereof is prevented by
reasons attributable to Buyer, in which case the latter shall be held liable
starting on the date on
<PAGE>
which Ferronales shall have advised Buyer in writing as the date for the
respective hand-over.
In case that Buyer does not opt for the course of action indicated in paragraph
c) of Clause Eight above, the parties agree that Buyer shall be held liable for
any loss of or damage to the Personalty and Equipment until the qualification to
title to said Personalty and Equipment shall be released as hereunder provided.
FIFTEEN: PRESERVATION OF PERSONALTY AND EQUIPMENT. Ferronales agrees to
preserve the Personalty and Equipment in their present condition, normal wear
and tear excepted, and to maintain them as it has done from time to time prior
to the execution of this Agreement.
This obligation of Ferronales shall remain in force through the date of
execution of the Personalty and Equipment hand-over certificate hereunder, or
until such date as Ferronales shall advise Buyer in writing to conduct the
respective hand-over procedure if it shall not have been effected for reasons
attributable to Buyer, in which case Seller shall be discharged from its
obligation to care for and watch over said assets.
Buyer agrees to preserve the Personalty and Equipment which are delivered in
deposit as provided in Clause Six above, in "AS-IS" condition at their time of
delivery, normal wear and tear excepted, and to maintain the same in the same
manner as Ferronales has done from time to time prior to the execution of this
Agreement.
SIXTEEN: SELLER'S LIMITATIONS TO LIABILITY. Inasmuch as the Personalty and
Equipment are used and sold in "AS-IS" condition at the moment of hand-over, and
that Buyer agrees to receive the same in said "AS-IS" condition, Seller shall
not be held liable for any hidden defects or for the operational quality,
capability and conditions thereof, nor shall provide any warranties in respect
thereof, with the exception of any warranties made by the manufacturer or
provider of maintenance or repair service and
<PAGE>
which remain in effect; nor shall Seller be obligated to replace, remove or
accept the return of, any Personalty and Equipment, nor to reduce the
transaction price. Accordingly, Buyer hereby expressly waives any claims against
Seller for any quality flaws and hidden defects which the Personalty and
Equipment may contain.
SEVENTEEN: PRICE ADJUSTMENT. The price for the Personalty and Equipment
described in Exhibit 1 hereto shall be adjusted only if a net difference arises
in favor of Buyer in excess of $ 500,000.00 (five hundred thousand Mexican
Pesos) and arising solely as the result of:
a) Liabilities directly affecting the assets sold and purchased hereunder,
which shall not have been disclosed to the Bidders during the Bidding Process
(as defined hereinbelow) arising from events, acts or omissions occurring prior
to the hand-over date of said assets; and
b) Fixed assets included in the list attached as Exhibit 1 hereto, which shall
be found to be non-existent upon completion of the hand-over procedure, not
considering for these purposes any variations in value which said assets may
cause to the list of assets.
The results obtained in the above paragraphs shall be offset, at Seller's
discretion, with existing assets not listed in Exhibit 1 which may be part of
the aforementioned Personalty and Equipment and which arise during the hand-over
procedure, in order to obtain a net difference in favor of Buyer, if any.
Seller shall only be liable for the Personalty and Equipment found to be non-
existent at the date of the final hand-over certificate, provided that said
Personalty and Equipment shall be actually listed in whole or part in Exhibit 1
hereto, and for liabilities directly affecting the Personalty and Equipment and
which shall not have been disclosed to the Bidders in the bidding process in
accordance with the Call for Bids and Bidding Guidelines referred to in recital
I, subClause a), second paragraph, of this Agreement.
<PAGE>
The notice whereby Buyer shall demand the price adjustment on the terms
indicated in paragraphs a) and b) above shall be stated in a single document, to
be delivered within 90 calendar days following the earlier between the date of
completion of the hand-over procedure and the effective date of the Concession
Agreement, which notice may not be revised following its delivery.
Adjustments to the price in accordance with this and the following Clause shall
be made on the basis of the appraisal value set forth in Exhibit 1 or in other
Exhibits thereto, regarding which the Department may opt for either replacing
the applicable fixed asset with another in comparable condition or applying the
appraisal value against payment of the price.
Exceptions to this Clause shall be those liabilities indicated in paragraph a)
above as may arise from tax, financial or labor obligations, in which case the
term to file the claim shall be the same as the applicable legislation shall
provide at the execution date of the Concession Agreement for the statute of
limitations or expiration of the right or action on which said claim shall be
based, as the case may be.
Likewise, the parties agree that the above claims shall apply only if the
Personalty and Equipment are found to be non-existent and may not be based on
the quality, state of preservation or other grounds not expressly indicated in
the above paragraphs, provided that said non-existence be or shall have been
claimed in accordance with this and the following Clause.
Buyer may conduct an audit to determine the existence of liabilities or non-
existence of assets, the results of which shall not be binding on Seller.
The price for the Personalty and Equipment sold and purchased hereunder shall be
adjusted in case a net difference shall arise in favor of Buyer as aforesaid,
not taking into
<PAGE>
account any variations which said assets may have undergone. The parties agree
that if any credit balance shall remain in favor of Seller for any reason or by
virtue of the delivery of Personalty or Equipment not included in the exhibits
hereto, Seller may make the applicable setoffs up to the amount of the lesser
indebtedness.
For the purposes of the above paragraph, the applicable financial cost shall be
calculated at the daily mathematical average of a yield equivalent to the
discount rate of 28-day Mexican Federal Treasury Bills (CETES), applicable
during the respective period.
EIGHTEEN: CLAIMS PROCEDURE. The parties agree that any claims arising from the
events indicated in the above Clause shall only be deemed filed as hereunder
provided when:
a) Buyer shall conclusively notify Seller in writing within 5 calendar days as
to the existence of any liability or any claim arising therefrom in connection
with the non-existence of any one or part of the assets, whether judicially or
extra-judicially, in order for Seller to take any action it may deem warranted,
provided that the liability or claim arising therefrom shall not be the result
of acts or omissions attributable to Buyer.
b) Buyer shall defend judicially or extra-judicially any applicable claims,
following Seller's instructions. Buyer shall not held liable for the results of
said defense provided it shall follow Seller's instructions and act in
accordance with the law, being in any case responsible for acting with the same
diligence it uses in conducting its own affairs.
c) Buyer shall furnish Seller or its representative, provided the request is
made on the established terms, with any available information and elements
necessary in case Seller shall decide to defend the claims and have the adequate
means therefor. In this case, Buyer shall be required to issue all requisite
powers-of-attorneys to the persons whom Seller shall determine; provided,
however, that the non-issuance of said powers-of-attorney shall result in the
price not being adjusted as it otherwise would have been.
<PAGE>
d) The claim must be filed within the terms indicated in the above paragraphs.
If the claims referred to hereinabove arise from acts for which Seller shall be
liable hereunder, all costs and expenses arising from the defense carried out by
Buyer shall be refunded by Seller, provided they are reasonable, duly evidenced
and directly related to the claims mentioned hereinabove. The amounts
pertaining to the items referred to herein shall be refunded to Buyer by Seller
within 20 calendar days as of the date of determination thereof.
If need be, Seller and Buyer shall jointly appoint a third party to decide
whether the claims by Buyer and arising from undisclosed liabilities or non-
existent assets are applicable, in order for the price to be adjusted as
provided herein. This third party shall be appointed from among the auditing
firms that work with the Administrative Oversight and Development Department.
Buyer and Seller shall pay for the costs and expenses incurred by said auditing
firm share and share alike. The opinion of the auditing firm shall be final,
binding upon the parties in accordance with its terms and not subject to any
means of recourse.
The provisions of the foregoing paragraph shall constitute an arbitration
procedure in accordance with article 1423 of the Code of Commerce, which
procedure shall be conducted as set forth in said body of law.
NINETEEN: OBLIGATIONS AND LIABILITIES OF BUYER. Buyer is obligated to secure
all the permits, licenses and authorizations required for the operation of the
Personalty and Equipment, to which end Seller shall furnish the documentation in
its possession and shall assist Buyer as necessary to the extent Seller is
capable.
TWENTY: OBLIGATION TO RECEIVE. The parties agree that Seller and Ferronales
shall be released from any liability as to the Personalty and Equipment
effective
<PAGE>
as of the execution date of the applicable hand-over certificate, whereupon said
liability shall pass to Buyer. If the delivery is not effected due to reasons
solely attributable to Buyer, then Buyer shall be held liable starting on the
date which Ferronales shall have advised in writing for the applicable delivery;
provided, however, that Buyer shall not be obligated to receive the Personalty
and Equipment prior to the earlier of the date of the final hand-over
certificate or August 30, 1999, unless otherwise agreed by the parties in
writing theretofore.
Buyer shall receive the Personalty and Equipment even if they are undergoing
repairs or reconstruction, and shall be deemed to have received them.
TWENTY-ONE. ASSUMPTION OF LIABILITIES. From the execution date of the hand-
over certificate for the Personalty and Equipment, Buyer agrees to assume all
liabilities in connection with the payment of any taxes, fines and other civil,
administrative, fiscal, labor-related, criminal or other liabilities, arising
from the possession, use, operation, service or exploitation thereof in any
manner, and Seller shall consequently not be held liable for any damages caused
or suffered by the Personalty and Equipment starting on the date of the
respective hand-over certificate.
The contents of this Clause shall be expressly recorded at the Public Registry
of Property and Commerce of Mexico City.
TWENTY-TWO: INDEMNIFICATION. Buyer hereby agrees to defend and hold harmless
Seller from and against any liability, particularly strict liability, arising
from the possession, use and operation of the Personalty and Equipment starting
on the date of the hand-over as provided herein, and to refund Seller any amount
that Seller shall have been forced to pay therefor, within 5 business days
following written request to that effect; provided, however, that failure to pay
said amounts in time and form shall obligate Buyer to pay late interest at the
Interest Rate indicated in Clause Five above, calculated from the original due
date through full payment of said sums.
<PAGE>
TWENTY-THREE: INSURANCE. Ferronales agrees to maintain insurance policies
covering the Personalty and Equipment against the risks and on the terms and
conditions indicated in Exhibit 8, from the date of this Agreement through the
delivery of said Personalty and Equipment hereunder, notwithstanding the
provisions set forth in Clause Eleven above.
In case Buyer shall not opt for the alternative indicated in paragraph c) of
Clause Eight above, Buyer nonetheless agrees to maintain the Personalty and
Equipment insured against the risks and on the terms and conditions indicated in
Exhibit 8 in favor of Seller, from the date of this Agreement and through
release of the qualification on the title to the Personalty and Equipment as
provided hereunder.
TWENTY-FOUR: TERMINATION. Seller may terminate this Agreement without any need
for a previous court resolution and with Buyer assuming liability therefor upon
default under any of the obligations set forth in this Agreement.
TWENTY-FIVE: CARE AND INSPECTION OF THE PERSONALTY AND EQUIPMENT. From the
date of this Agreement and through the hand-over of the Personalty and
Equipment, Buyer will be entitled to see that proper action is taken for their
care, preservation and maintenance, as well as to check on their normal use, and
also that the insurance and, if applicable, the warranty policies remain in
effect.
Seller shall make all necessary arrangements for Buyer to exercise the rights
indicated hereinabove, and shall honor the recommendations made by Buyer's
representative to the extent they are consistent.
In case that Buyer does not opt for the course of action indicated in paragraph
e) of Clause Eight above, Seller will be entitled to see that proper action is
taken for their care,
<PAGE>
preservation and maintenance, as well as to check on their normal use, and also
that the insurance and, if applicable, the warranty policies remain in effect.
Buyer shall make all necessary arrangements for Seller to exercise the rights
indicated hereinabove, and shall honor the recommendations made by Seller's
representative to the extent they are consistent.
TWENTY-SIX: CONSIDERATION FOR THE USE OF PERSONALTY AND EQUIPMENT. Buyer hereby
acknowledges and accepts that, during the period from the date of this Agreement
through the hand-over of the Personalty and Equipment as provided in Clause
Eleven above, Buyer shall not be entitled to receive any consideration for the
use and usufruct thereof by Ferronales.
TWENTY-SEVEN: ASSIGNMENTS. Buyer may not assign the rights and obligations
hereunder in whole or in part except with the express written authorization of
Seller.
TWENTY-EIGHT: TAXES. Any taxes levied on this Agreement and in connection with
performance hereunder shall be paid by the party on whom applicable legislation
imposes said obligation.
TWENTY-NINE: EVICTION. Seller agrees to carry out all title clearance
procedures on behalf of Buyer in case of eviction.
THIRTY: The parties state the following addresses for service of notice or
process:
<PAGE>
Seller
For payment purposes:
The Department Tesoreria de la Federacion
Av. Xola y Universidad Av. Constituyentes 1001
Col. Narvarte Edificio "C" Planta Baja
Mexico, D.F. Col. Belen de las Flores
Mexico D.F. C.P. 1001
Ferronales Buyer
Avenida Jesus Garcia Corona No. 140 Street and Number
Colonia Buenavista Neighborhood
Deleg. Cuauhtemoc Municipal Subdivision
06358 Mexico D.F. City
THIRTY-ONE: JURISDICTION. For the purposes of interpreting and performing
under this Agreement as well as in any other matter not expressly provided
herein, the parties submit to the jurisdiction and competence of the Federal
Courts of Mexico City, and they consequently waive any other jurisdiction to
which they may be entitled by virtue of their present or future domiciles or
otherwise.
This Agreement is executed in 22 counterparts, being [its Spanish original] 26
useful pages in addition to the Exhibits hereto, in Mexico City, Federal
District, this 17th day of August, 1999.
SELLER BUYER
/s/ Lic. Maria De La Luz Ruiz Mariscal /s/ Lic. Carlos Eduardo Cornejo Jurgensen
- -------------------------------------- -----------------------------------------
Chief Administrative Officer Legal representative of the Company
Department of Communications and
Transportation
<PAGE>
FERRONALES
/s/ Lic. Ramiro Sosa Lugo
- --------------------------------------
Attorney-in-Fact
<PAGE>
EXHIBITS TO THE PURCHASE AND SALE AGREEMENT
*Exhibit 1 - Property Sold
*Exhibit 2 - Letter appointing Buyer as the winner of the Bid.
*Exhibit 3 - Legal capacity of the Department's representative
*Exhibit 4 - Articles of Incorporation of Buyer
*Exhibit 5 - Legal capacity of Buyer's representative
*Exhibit 6 - Letter by SECODAM authorizing the donation
*Exhibit 7 - Legal capacity of Ferronales's representative
*Exhibit 8 - Insurance to be maintained by Ferronales
*Exhibit 9 - Concession Agreement
*Exhibit 10 - Irrevocable security trust indenture
* OMITTED EXHIBITS
UPON WRITTEN REQUEST, THE REGISTRANT WILL PROVIDE COPIES OF ANY OF THE
REFERENCED OMITTED EXHIBITS.
<PAGE>
Exhibit 11.1
GENESEE & WYOMING INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended Nine months Ended
September 30, 1999 September 30, 1999
--------------------------------------------
BASIC EARNINGS PER SHARE CALCULATION:
<S> <C> <C>
Net Income $6,691 $9,105
Weighted average number of shares
of common stock 4,298 4,547
Earnings per share - basic $ 1.56 $ 2.00
DILUTED EARNINGS PER SHARE CALCULATION:
Net Income $6,691 $9,105
Weighted average number of shares of common stock
and common stock equivalents outstanding:
Weighted average number of shares
of common stock 4,298 4,547
Common stock equivalents issuable under stock
option plans 69 57
Weighted average number of shares of common stock
and common stock equivalents - diluted 4,367 4,604
Earnings per share - diluted $ 1.53 $ 1.98
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM BALANCE
SHEET INCOME STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
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0
0
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</TABLE>
