SECOND AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT

Exhibit 10.1

 

Published CUSIP Number: 371559105

SECOND AMENDED AND RESTATED

REVOLVING CREDIT AND TERM LOAN AGREEMENT

Dated as of August 8, 2008

among

GENESEE & WYOMING INC. , as U.S. Borrower

QUEBEC GATINEAU RAILWAY INC. , as Canadian Borrower

ROTTERDAM RAIL FEEDING B.V. , as European Borrower

GENESEE & WYOMING AUSTRALIA PTY LTD

(ACN 079 444 296) , as Australian Borrower

THE GUARANTORS

THE LENDING INSTITUTIONS LISTED

ON SCHEDULE II HERETO ,

as Lenders

BANK OF AMERICA, N.A. ,

as Administrative Agent, Domestic Swingline Lender and the Issuing Lender

BANK OF AMERICA, N.A., acting through its London branch ,

as European Swingline Lender

BANK OF AMERICA, N.A., acting through its Canada branch ,

as Canadian Swingline Lender

and

BANK OF AMERICA, N.A., acting through its Australia branch ,

as Australian Swingline Lender

with

BANC OF AMERICA SECURITIES LLC ,

as Sole Lead Arranger and Book Manager

KEYBANK NATIONAL ASSOCIATION , as Syndication Agent

and

DEUTSCHE BANK AG NEW YORK BRANCH and

RBS CITIZENS, NATIONAL ASSOCIATION ,

as Co-Documentation Agents

 

TABLE OF CONTENTS

 

 

i

TABLE OF CONTENTS

(continued)

 

 

ii

TABLE OF CONTENTS

(continued)

 

 

iii

TABLE OF CONTENTS

(continued)

 

 

iv

TABLE OF CONTENTS

(continued)

 

 

v

TABLE OF CONTENTS

(continued)

 

 

vi

SECOND AMENDED AND RESTATED

REVOLVING CREDIT AND TERM LOAN AGREEMENT

This SECOND AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “ Credit Agreement ”) is made as of August 8, 2008 by and among (a)  GENESEE & WYOMING INC. , a Delaware corporation (“ GWI ” or the “ U.S. Borrower ”), (b)  QUEBEC GATINEAU RAILWAY INC. , a corporation constituted under the laws of Quebec, Canada (“ Quebec ” or the “ Canadian Borrower ”), (c)  GENESEE & WYOMING AUSTRALIA PTY LTD (ACN 079 444 296), a proprietary limited company incorporated under the laws of Australia (the “ Australian Borrower ”), (d)  ROTTERDAM RAIL FEEDING B.V. , a private limited liability company constituted under the laws of the Netherlands (the “ European Borrower ” and, together with the U.S. Borrower, the Canadian Borrower and the Australian Borrower, the “ Borrowers ”), (e) the Subsidiaries of the U.S. Borrower listed on Schedule I hereto and any other Person which may become a guarantor of the Obligations in accordance with §9.14 (the “ U.S. Guarantors ”), (f)  GENESEE & WYOMING CANADA INC. , MIRABEL RAILWAY INC. , HURON CENTRAL RAILWAY INC., ST. LAWRENCE & ATLANTIC RAILROAD (QUEBEC) INC. and SERVICES FERROVIAIRES DE L’ESTUAIRE (collectively, the “ Canadian Guarantors ”), (g)  GENESEE & WYOMING C.V. and GWI HOLDINGS B.V. (collectively, the “ European Guarantors ”), (h)  GWI HOLDINGS PTY LTD (ACN 094 819 806), VIPER LINE PTY LIMITED (ACN 092 437 691) and SA RAIL PTY LIMITED (ACN 077 946 340) (collectively, the “ Australian Guarantors ”), (i) any other Person which may become a guarantor of the Foreign Obligations in accordance with §9.14 (together with the Canadian Guarantors, the European Guarantors and the Australian Guarantors, the “ Foreign Guarantors ”), (j)  BANK OF AMERICA, N.A., a national banking association and the other lending institutions listed on Schedule II hereto, (k)  BANK OF AMERICA, N.A. , as administrative agent for itself and such lending institutions (acting in such capacity, the “ Administrative Agent ”), Domestic Swingline Lender and Issuing Lender, (l)  BANK OF AMERICA, N.A. , acting through its Canada branch, as Canadian Swingline Lender, (m)  BANK OF AMERICA, N.A. , acting through its London branch, as European Swingline Lender, (n)  BANK OF AMERICA, N.A. , acting through its Australia branch, as Australian Swingline Lender, (o)  KEYBANK NATIONAL ASSOCIATION , as syndication agent (the “ Syndication Agent ”) and (p)  DEUTSCHE BANK AG NEW YORK BRANCH and RBS CITIZENS, NATIONAL ASSOCIATION , as co-documentation agents (the “ Co-Documentation Agents ”).

WHEREAS, pursuant to that certain Amended and Restated Revolving Credit and Term Loan Agreement, dated as of November 12, 2004 (as heretofore amended, the “ Existing Credit Agreement ”), certain Lenders have made loans to the U.S. Borrower and the Canadian Borrower for the purposes described therein; and

WHEREAS, GWI has requested that the Lenders and the Administrative Agent amend and restate the Existing Credit Agreement in its entirety to, among other things:

(a) increase the Total Commitment to $300,000,000;

(b) provide for Term Loans to the U.S. Borrower in the aggregate principal amount of $240,000,000;

(c) provide for a Term Loan to the Canadian Borrower in the aggregate principal amount of the Canadian Dollar Equivalent of $30,000,000;

(d) convert the loans and letters of credit under the Existing Credit Agreement into Loans and Letters of Credit hereunder; and

(e) make certain other changes to the terms and provisions of the Existing Credit Agreement.

NOW THEREFORE, the Borrowers, the Guarantors, the Lenders and the Agents hereby agree that, subject to §29 hereof, the Existing Credit Agreement (including all the schedules and exhibits thereto) is hereby amended and restated in its entirety as set forth herein:

 

1.

DEFINITIONS AND RULES OF INTERPRETATION .

1.1. Definitions . The following terms shall have the meanings set forth in this §1 or elsewhere in the provisions of this Credit Agreement referred to below:

Additional Term Loan . See §27.2.

Adjustment Date . Each April 1, June 1, September 1 and December 1 of each calendar year.

Administrative Agent . See preamble.

Administrative Agent’s Office . With respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 21 (as may be updated from time to time with notice to GWI and the Lenders) with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify GWI and the Lenders.

Administrative Agent’s Special Counsel . Bingham McCutchen LLP or such other counsel as may be approved by the Administrative Agent.

Administrative Questionnaire . An Administrative Questionnaire in a form supplied by the Administrative Agent.

Affected Lender . See §6.11.

Affiliate . Any Person that would be considered to be an affiliate of another Person under Rule 144(a) of the Rules and Regulations of the Securities and Exchange Commission, as in effect on the date hereof, if such other Person were issuing securities.

Agents . Collectively, the Administrative Agent, the Australian Agent, the Canadian Agent and the European Agent.

Agent’s Fees . See §6.1.1.

 

2

Aggregate Australian Commitments . The Australian Commitments of all the Australian Lenders.

Aggregate Canadian Revolving Loan Commitments . The Canadian Revolving Loan Commitments of all the Canadian Lenders.

Aggregate Domestic Revolving Loan Commitments . The Domestic Revolving Loan Commitments of all the Domestic Lenders.

Aggregate European Commitments . The European Commitments of all the European Lenders.

Alternative Currency . Each of Euro, Canadian Dollars and Australian Dollars.

Applicable Agent . The Administrative Agent, the Australian Agent, the Canadian Agent or the European Agent, as the context requires.

Applicable Agent’s Office . The Administrative Agent’s Office, the Australian Agent’s Office, the Canadian Agent’s Office or the European Agent’s Office, as the context requires.

Applicable Borrower . The U.S. Borrower, the European Borrower, the Canadian Borrower or the Australian Borrower, as the context requires.

Applicable Commitment . Each Lender’s Domestic Revolving Loan Commitment, Canadian Revolving Loan Commitment, European Commitment or Australian Commitment, as applicable.

Applicable Foreign Loan Party Documents . See §8.22.

Applicable Lenders . The Domestic Lenders, the Canadian Lenders, the European Lenders or the Australian Lenders, as the context requires.

Applicable Margin . For each period commencing on an Adjustment Date through the date immediately preceding the next Adjustment Date (each a “ Rate Adjustment Period ”), the Applicable Margin shall be the applicable margin set forth below with respect to the 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).

 

3

Notwithstanding the foregoing, (a) during the period commencing on the Closing Date through the second Adjustment Date following the Closing Date, the Applicable Margin shall be no lower than the Applicable Margin set forth for Level II above, and (b) if the Borrowers fail to deliver any Compliance Certificate pursuant to §9.4(c) hereof, then, for the period commencing on the date such Compliance Certificate was due pursuant to §9.4(c) through the date such Compliance Certificate is actually delivered to the Lenders, the Applicable Margin shall be the highest Applicable Margin set forth above.

Applicable Register . The Domestic Register, the European Register, the Canadian Register or the Australian Register, as applicable.

Applicable Required Lenders . The Required Domestic Lenders, the Required Canadian Lenders, the Required European Lenders and/or the Required Australian Lenders, as the context requires.

 

4

Applicable Swingline Lender . The Domestic Swingline Lender, the European Swingline Lender, the Canadian Swingline Lender or the Australian Swingline Lender, as the context requires.

Approved Fund . Any Fund that is administered or managed by (a) a Lender, (b) a Lender Affiliate or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Arranger . Banc of America Securities LLC.

Assignment and Assumption . An assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by §20.2), and accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form approved by the Administrative Agent.

Australian Agent . With respect to local funding procedures described herein, Bank of America-Australia Branch in its capacity as Australian agent under any of the Loan Documents, and with respect to any other provisions set forth herein, Bank of America, and in each case, any successor Australian Agent.

Australian Agent’s Office . With respect to Australian Dollars, Bank of America-Australia Branch’s address and, as appropriate, account as set forth on Schedule 21 (as may be updated from time to time with notice to the Australian Borrower) with respect to such currency, or such other address or account with respect to such currency as the Australian Agent may from time to time notify the Australian Borrower and the Lenders.

Australian Base Rate . The annual rate of interest announced from time to time by the Australian Agent at its head office in Sydney, Australia as its “overdraft rate”.

Australian Base Rate Loan . Australian Swingline Loans bearing interest calculated by reference to the Australian Base Rate.

Australian Borrower . See preamble.

Australian Commitment . As to each Australian Lender, its obligation to make Australian Loans to the Australian Borrower pursuant to §2.1 in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Australian Lender’s name on Schedule II hereto, as such Schedule may be updated from time to time pursuant to §§2.10(c) or 20, or in the Assignment and Assumption pursuant to which an Australian Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Credit Agreement.

Australian Commitment Fee . See §2.2(d).

Australian Dollar Equivalent . At any time, (a) with respect to any amount denominated in Australian Dollars, such amount, and (b) with respect to any amount denominated in any currency other than Australian Dollars, the equivalent amount thereof in Australian Dollars as determined by the Applicable Agent or the Applicable Issuing Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Australian Dollars with such other currency.

 

5

Australian Dollars or AUD . The lawful currency of the Commonwealth of Australia.

Australian Guarantors . See preamble.

Australian Lenders . The Lenders listed on Schedule II , acting in their role as lenders of the Australian Loans and any other Person who becomes an assignee of any rights and obligations of an Australian Lender pursuant to §20.

Australian Loans . The revolving credit loans made or to be made by the Australian Lenders to the Australian Borrower pursuant to §2.1.

Australian Notes . See §2.4.

Australian Obligations . All indebtedness, obligations and liabilities of the Australian Borrower to the Australian Lenders, the Australian Swingline Lender, the Issuing Lender and the Australian Agent, individually or collectively existing on the date of this Credit Agreement or arising thereafter (a) under or in respect of or in connection with any of the Australian Notes, Letters of Credit or Letter of Credit Applications in respect of the Australian Borrower, or Australian Loans or Australian Swingline Loans made, or Reimbursement Obligations incurred and including any interest thereon, Australian Commitment Fees or other fees or expenses in respect thereof, (b) under any Hedging Agreement between the Australian Borrower and any Australian Lender, the Australian Swingline Lender, the Issuing Lender, or any Lender Affiliate, and (c) under the Loan Documents.

Australian Register . See §20.3(c).

Australian Swingline Lender . Bank of America-Australia Branch in its capacity as lender of Australian Swingline Loans hereunder.

Australian Swingline Loan . Any loan made by the Australian Swingline Lender to the Australian Borrower pursuant to §2.7.1 hereof.

Australian Swingline Sublimit . $15,000,000. The Australian Swingline Sublimit is part of, and not in addition to, the Aggregate Domestic Revolving Loan Commitments.

Balance Sheet Date . December 31, 2007.

Bank of America . Bank of America, N.A., a national banking association.

Bank of America-Australia Branch . Bank of America, N.A., acting through its Australia branch, together with its successors.

Bank of America-Canada Branch . Bank of America, N.A., acting through its Canada branch, together with its successors.

 

6

Bank of America-London Branch . Bank of America, N.A., acting through its London branch, together with its successors.

Base Rate . For any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus  ¹ / 2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

Base Rate Loans . All or any portion of any Domestic Revolving Loans and all or any portion of the Domestic Term Loan bearing interest calculated by reference to the Base Rate.

Borrowers . Collectively, the U.S. Borrower, the Australian Borrower, the European Borrower and the Canadian Borrower, and the term Borrower shall apply to each of them individually.

Borrowers Materials . See §9.4.

Business Day . Any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, as applicable, (i) New York, (ii) the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located, (iii) the province where the Canadian Agent’s Office with respect to Obligations denominated in Canadian Dollars is located, (iv) the country where the European Agent’s Office with respect to Obligations denominated in Euro is located or (v) the state where the Australian Agent’s Office with respect to Obligations denominated in Australian Dollars is located and:

(a) if such day relates to any interest rate settings as to a LIBOR Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such LIBOR Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Credit Agreement in respect of any such LIBOR Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market;

(b) if such day relates to any interest rate settings as to a LIBOR Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such LIBOR Rate Loan, or any other dealings in Euro to be carried out pursuant to this Credit Agreement in respect of any such LIBOR Rate Loan, means a TARGET Day;

(c) if such day relates to any interest rate settings as to a LIBOR Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and

 

7

(d) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a LIBOR Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Credit Agreement in respect of any such LIBOR Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

Canadian Agent . With respect to local funding procedures described herein, Bank of America-Canada Branch in its capacity as Canadian agent under any of the Loan Documents, and with respect to any other provisions set forth herein, Bank of America, and in each case, any successor Canadian Agent.

Canadian Agent’s Office . With respect to Canadian Dollars, Bank of America-Canada Branch’s address and, as appropriate, account as set forth on Schedule 21 (as may be updated from time to time with notice to the Canadian Borrower) with respect to such currency, or such other address or account with respect to such currency as the Canadian Agent may from time to time notify the Canadian Borrower and the Lenders.

Canadian Base Rate . The applicable per annum rate of interest quoted or announced from time to time and charged by the Canadian Agent for commercial loans made by it to third parties in Canada in Canadian Dollars, as determined by the Canadian Agent based upon various factors including its cost of funds and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans.

Canadian Base Rate Loans . All or any portion of any Canadian Loan bearing interest calculated by reference to the Canadian Base Rate.

Canadian Borrower . See preamble.

Canadian Dollar Equivalent . At any time, (a) with respect to any amount denominated in Canadian Dollars, such amount, and (b) with respect to any amount denominated in any currency other than Canadian Dollars, the equivalent amount thereof in Canadian Dollars as determined by the Applicable Agent or the Applicable Issuing Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Canadian Dollars with such other currency.

Canadian Dollars or Cdn. $ . Lawful currency of Canada.

Canadian Guarantors . See preamble.

Canadian Lenders . The Lenders listed on Schedule II , acting in their role as lenders of the Canadian Loans and any other Person who becomes an assignee of any rights and obligations of a Canadian Lender pursuant to §20.

Canadian Loans . Collectively, the Canadian Term Loan and the Canadian Revolving Loans.

 

8

Canadian Notes . Collectively, the Canadian Term Notes and the Canadian Revolving Notes.

Canadian Obligations . All indebtedness, obligations and liabilities of the Canadian Borrower to the Canadian Lenders, the Canadian Swingline Lender, the Issuing Lender and the Canadian Agent, individually or collectively existing on the date of this Credit Agreement or arising thereafter (a) under or in respect of or in connection with any of the Canadian Notes, Letters of Credit or Letter of Credit Applications in respect of the Canadian Borrower, or Canadian Loans or Canadian Swingline Loans made, or Reimbursement Obligations incurred and including any interest thereon, Canadian Commitment Fees or other fees or expenses in respect thereof, (b) under any Hedging Agreement between the Canadian Borrower and any Canadian Lender, the Canadian Swingline Lender, the Issuing Lender, or any Lender Affiliate, and (c) under the Loan Documents.

Canadian Plans . All the employee benefit, fringe benefit, supplemental unemployment benefit, bonus, incentive, profit sharing, termination, change of control, pension, retirement, stock option, stock purchase, stock appreciation, health, welfare, medical, dental, disability, life insurance and similar plans, programmes, arrangements or practices relating to the current or former employees, officers or directors of the Canadian Borrower and the Canadian Guarantors maintained, sponsored or funded by the Canadian Borrower or the Canadian Guarantors (as the case may be), whether written or oral, funded or unfunded, insured or self-insured, registered or unregistered.

Canadian Register . See §20.3(d).

Canadian Revolving Loan . The revolving credit loans to be made by the Canadian Lenders to the Canadian Borrower pursuant to §2.1 hereof.

Canadian Revolving Loan Commitment . As to each Canadian Lender, its obligation to make a Canadian Revolving Loan to the Canadian Borrower pursuant to §2.1 in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Canadian Lender’s name on Schedule II hereto, as such Schedule may be updated from time to time pursuant to §§2.10(c) or 20, or in the Assignment and Assumption pursuant to which a Canadian Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Credit Agreement.

Canadian Revolving Loan Commitment Fee . See §2.2(c).

Canadian Revolving Notes . See §2.4.

Canadian Swingline Lender . Bank of America-Canada Branch in its capacity as lender of Canadian Swingline Loans hereunder.

Canadian Swingline Loan . Any loan made by the Canadian Swingline Lender to the Canadian Borrower pursuant to §2.7.1 hereof.

Canadian Swingline Sublimit . $15,000,000. The Canadian Swingline Sublimit is part of, and not in addition to, the Aggregate Domestic Revolving Loan Commitments.

 

9

Canadian Term Loan . The term loan made by the Lenders in accordance with their Commitment Percentages to the Canadian Borrower on the Closing Date pursuant to §3.1 in the principal amount of the Canadian Dollar Equivalent of $30,000,000.

Canadian Term Notes . See §3.2.

Capital Assets . Fixed assets, both tangible (such as land, buildings, fixtures, machinery and equipment) and intangible (such as patents, copyrights, trademarks, franchises and good will); provided that Capital Assets shall not include any item customarily charged directly to expense or depreciated over a useful life of twelve (12) months or less in accordance with GAAP.

Capital Expenditures . Amounts paid or indebtedness incurred (without duplication) by the Borrowers or their Restricted Subsidiaries in connection with the purchase or lease by any of the Borrowers or any of their Restricted Subsidiaries of Capital Assets that would be required to be capitalized and shown on the balance sheet of such Person in accordance with GAAP, less amounts reimbursed by third parties.

Capital Stock . Any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.

Capitalized Leases . Leases under which any of the Borrowers or any of their Restricted Subsidiaries is the lessee or obligor, the discounted future rental payment obligations under which are required to be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP.

Cash Collateral . Cash or deposit account balances pledged and deposited with or delivered to the Applicable Agent, for the benefit of the Issuing Lender and the Applicable Lenders which have Domestic Revolving Loans, Canadian Revolving Loans, European Loans or Australian Loans pursuant to §5, as collateral for the Letter of Credit Obligations, pursuant to documentation in form and substance reasonably satisfactory to the Applicable Agent and the Issuing Lender (which documents are hereby consented to by the Lenders). Cash Collateral shall be maintained in collateral accounts with the Applicable Agent. Derivatives of such term have corresponding meanings.

Cash Equivalents . (a) Marketable direct obligations issued by, or unconditionally guaranteed by, the United States government, the Canadian government, the government of the European Union, the government of the Netherlands, or the Australian government or issued by any agency thereof and backed by the full faith and credit of the United States, Canada, the European Union, the Netherlands or Australia in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States, Canada, the European Union, the Netherlands or Australia or any state or province thereof having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-1 by Standard & Poor’s Ratings Services (“ S&P ”) or P-1 by Moody’s Investors Service, Inc. (“ Moody’s ”),

 

10

or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government, the Canadian government, the government of the European Union, the government of the Netherlands, or the Australian government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, province, commonwealth or territory of the United States, Canada, the European Union, the Netherlands or Australia, by any political subdivision or taxing authority of any such state, province, commonwealth or territory or by any other foreign government, the securities of which state, province, commonwealth, territory, political subdivision, taxing authority or other foreign government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar funds that invest in assets satisfying the requirements of clauses (a) through (f) of this definition; or (h) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

CERCLA . See §8.15.

Closing Date . The first date on which the conditions set forth in §§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.

Commitment Fee . Collectively, the Domestic Revolving Loan Commitment Fee, the European Commitment Fee, the Canadian Revolving Loan Commitment Fee and the Australian Commitment Fee.

Commitment Fee Rate . The Commitment Fee Rate set forth in accordance with the definition of Applicable Margin hereof.

Commitment Percentage . With respect to each Lender, the percentage set forth next to such Lender’s name on Schedule II hereto as such Lender’s applicable percentage of the Aggregate Domestic Revolving Loan Commitments, Aggregate Canadian Revolving Loan Commitments, Aggregate European Commitments, and Aggregate Australian Commitments and with respect to the Term Loans, such Lender’s applicable percentage of the outstanding Domestic Term Loan and Canadian Term Loan, as applicable, as the same may be adjusted in accordance with §§2.10 or 20.

 

11

Commitments . Collectively, or individually, the Domestic Revolving Loan Commitment, the European Commitment, the Australian Commitment and/or the Canadian Commitment.

Compliance Certificate . See §9.4(c).

Consolidated or consolidated . With reference to any term defined herein, shall mean that term as applied to the accounts of the Borrowers and their Restricted Subsidiaries, consolidated in accordance with GAAP.

Consolidated EBITDA . For any fiscal period of the Borrowers and their Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated Net Income for such fiscal period, plus in each case, to the extent deducted in computing Consolidated Net Income and without duplication, (b) Consolidated Total Interest Expense for such fiscal period, (c) income tax expense for such fiscal period, (d) the aggregate amount of depreciation and amortization for such fiscal period, (e) all losses from the sale of assets of the Borrowers and their Restricted Subsidiaries (except to the extent the losses from sales of assets are related to sales of assets purchased during the fiscal period) and (f) non-cash compensation expense minus (g) to the extent included in computing Consolidated Net Income, all gains from the sale of assets of the Borrowers and their Restricted Subsidiaries (except to the extent the gains from sales of assets are related to sales of assets purchased during the fiscal period).

Consolidated EBITDAR . For any fiscal period of the Borrowers and their Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated EBITDA for such fiscal period (which shall include EBITDA of the businesses acquired by the Borrowers or any of their Restricted Subsidiaries through Permitted Acquisitions during such fiscal period (each an “ Acquired Business ”), or the Restricted Subsidiaries acquired or formed during such fiscal period (each a “ New Subsidiary ”); in each case, on a pro forma basis in an amount such that the actual EBITDA of such Acquired Business or New Subsidiary included in such period plus the amount of pro forma EBITDA of such Acquired Business or New Subsidiary included in such period (the “ Pro Forma EBITDA ”) equals one year of EBITDA credit; provided that , (i) such calculations shall be made with reference to the audited financial statements of such Acquired Businesses or New Subsidiaries for the most recent fiscal year ended of such Acquired Businesses or New Subsidiaries and any unaudited quarterly statements which have been received since the most recent fiscal year ended of such Acquired Business or New Subsidiaries, or (ii) in the event that there are only unaudited financial results or no financial results available with respect to such Acquired Businesses or New Subsidiaries, such calculations shall be made with reference to other acceptable financial statements or reasonable estimates of such past performance made by the Borrowers based on existing data and other available information, such financial statements or, as the case may be, estimates to be agreed upon by the Borrowers and the Administrative Agent and, with respect to Permitted Acquisitions for which the total consideration (other than consideration in the form of Capital Stock of any Borrower or any Restricted Subsidiary) therefor exceeds $100,000,000 (or in the event that the pro forma financial statements delivered pursuant to §10.5.2(ii) demonstrate a pro forma Funded Debt to EBITDAR Ratio less than or equal to 3.00 to 1, $150,000,000), the Required Lenders) plus (b) to the extent deducted in computing Consolidated Net Income, all payments and rental charges made by any of the Borrowers or any of their Restricted Subsidiaries (including any Acquired Business or New

 

12

Subsidiary) during such fiscal period in respect to operating leases plus (c) expenses for such fiscal period with respect to Permitted Acquisitions which are (i) discontinued upon the effective date of Permitted Acquisition or within sixty days thereof, (ii) approved by the Administrative Agent (which approval shall not be unreasonably withheld) and (iii) otherwise consistent with Regulation S-X. By way of example only, Pro Forma EBITDA of an Acquired Subsidiary or a New Subsidiary would be determined, at any time during the first four fiscal quarters following a Permitted Acquisition or the formation of a New Subsidiary, by multiplying (A) the annual pro forma EBITDA of such Person determined at the time of such acquisition or formation by (B) a fraction, the numerator of which equals 365 minus the number of days elapsed from the closing date of such acquisition or formation to the applicable date of determination, and the denominator of which equals 365.

Consolidated Funded Debt . As at any date of determination, an amount equal to the aggregate amount of Indebtedness of the Borrowers and their Restricted Subsidiaries, determined on a consolidated basis, related to the borrowing of money, the obtaining of credit or any outstanding contingent acquisition purchase price amounts (which the parties hereto agree for the purposes of this definition does not include Indebtedness permitted under §§10.1(b), (c), (d), (e), (h), (i) and (j) hereof) whether absolute or contingent, including, to the extent not included in such Indebtedness, the net present value (using a discount rate of 8% per annum) of all operating leases with a non-cancellable term of longer than one year and all Indebtedness guaranteed by any of the Borrowers or any of their Restricted Subsidiaries. Consolidated Funded Debt shall not include any committed purchase amounts for the acquisition of railroad and railroad-related material, equipment or supplies.

Consolidated Net Income . The consolidated net income of the Borrowers and their Restricted Subsidiaries, after deduction of all expenses, taxes, and other proper charges, determined in accordance with GAAP, after eliminating therefrom all extraordinary nonrecurring items of income or loss; minus any equity in the net income of (or plus any equity in the net loss of) any minority equity investment of any Borrower or any Restricted Subsidiary in any Unrestricted Subsidiary, plus cash dividends or similar cash Distributions paid to the Borrowers or their Restricted Subsidiaries from any Unrestricted Subsidiary, during the applicable period.

Consolidated Total Interest Expense . For any period, the aggregate amount of interest required to be paid or accrued by the Borrowers and their Restricted Subsidiaries during such period on all Indebtedness of the Borrowers and their Restricted Subsidiaries related to the borrowing of money or the obtaining of credit outstanding during all or any part of such period, including payments consisting of interest in respect of any Capitalized Lease and including commitment fees, agency fees, facility fees, balance deficiency fees and similar fees or expenses in connection with the borrowing of money (other than non-cash interest or fees) solely to the extent that such fees are properly included as interest expense in accordance with GAAP.

Conversion Request . A notice given by the U.S. Borrower, Australian Borrower, European Borrower or Canadian Borrower to the Applicable Agent of such Borrower’s election to convert or continue a Domestic Loan, Australian Loan, European Loan or Canadian Loan in accordance with §2.8 or §3.5, as applicable.

 

13

Corporate Restructuring . The moving of certain Canadian and Australian Subsidiaries of the U.S. Borrower to become subsidiaries of GWI Holding B.V. or a direct subsidiary thereof.

Credit Agreement . This Second 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 §7.7.

Debtor Relief Laws . The Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up Act (Canada), the Bankruptcy Act (Netherlands), Corporations Act 2001 (Cwlth)(Australia) and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Canada, Australia, the Netherlands, the European Union or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Debtor Relief Reservations . (a) The event that not every obligation will be enforced by a court in accordance with its terms in every circumstance, the enforcement being subject, inter alia, to the nature of the available remedies, (b) any limitation by bankruptcy, moratorium, fraudulent conveyance ( Actio Pauliana ) or similar laws affecting creditor’s rights generally, (c) the time-barring of claims under applicable statutes of limitation, (d) rules against penalties and similar principles and (e) any other generally accepted limitations of law, including those which are set out as qualifications as to matters of law in the legal opinions delivered to the Applicable Agent under this Credit Agreement.

Default . See §14.1.

Delinquent Lender . See §16.11.3.

Distribution . The declaration or payment of any dividend on or in respect of any shares of any class of Capital Stock of any Person, other than dividends payable solely in shares of common stock or similar non-preferred equity interests of such Person; the purchase, redemption, or other retirement of any shares of any class of Capital Stock of any Person, directly or indirectly through a Subsidiary of such Person or otherwise; the return of capital by any Person to its shareholders or equity holders as such; or any other distribution on or in respect of any shares of any class of Capital Stock of any Person.

Dollar Equivalent . At any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Applicable Agent or the Applicable Issuing Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such other currency.

Dollars or $ . Dollars in lawful currency of the United States of America.

 

14

Domestic Lenders . The Lenders listed on Schedule II , acting in their role as lenders of the Domestic Revolving Loans and the Domestic Term Loan and any other Person who becomes an assignee of any rights and obligations of a Domestic Lender pursuant to §20.

Domestic Lending Office . Initially, the office of each Lender designated as such in Schedule II hereto; thereafter, such other office of such Lender, if any, located within the United States that will be making or maintaining Base Rate Loans.

Domestic Notes . The Domestic Revolving Notes and the Domestic Term Notes.

Domestic Register . See §20.3(a).

Domestic Revolving Loans . The revolving credit loans to be made by the Domestic Lenders to the U.S. Borrower pursuant to §2.1 hereof.

Domestic Revolving Loan Commitment . With respect to each Domestic Lender, the amount set forth on Schedule II hereto, as such Schedule may be updated from time to time pursuant to §§2.10(c) or 20, or in the Assignment and Assumption pursuant to which a Domestic Lender becomes a party hereto, as applicable, as the amount of such Lender’s commitment to make Domestic Revolving Loans to, to participate in Swingline Loans to, and to participate in the issuance and extension of Letters of Credit for the account of, the U.S. Borrower (and, in the case of Letters of Credit and Swingline Loans, the Canadian Borrower, the European Borrower and the Australian Borrower), as such amount may be adjusted from time to time in accordance with this Credit Agreement.

Domestic Revolving Loan Commitment Fee . See §2.2(a).

Domestic Revolving Notes . See §2.4.

Domestic Swingline Lender . Bank of America in its capacity as lender of Domestic Swingline Loans hereunder.

Domestic Swingline Loan . Any loan made by the Domestic Swingline Lender to the U.S. Borrower pursuant to §2.7.1 hereof.

Domestic Swingline Sublimit . $15,000,000. The Domestic Swingline Sublimit is part of, and not in addition to, the Aggregate Domestic Revolving Loan Commitments.

Domestic Term Loan . See §3.1(a).

Domestic Term Note . See §3.2.

Drawdown Date . The date on which any Loan is made or is to be made, and the date on which all or any portion of any Loan is converted or continued in accordance with §§2.8 or 3.5, as applicable.

Eligible Assignee . Any of (a) a Lender, (b) a Lender Affiliate, and (c) any other Person (other than a natural person) approved by (i) the Administrative Agent and (ii) unless an Event of Default has occurred and is continuing, the U.S. Borrower (each such approval not to be unreasonably withheld or delayed).

 

15

Employee Benefit Plan . Any employee benefit plan within the meaning of §3(3) of ERISA maintained or contributed to by the U.S. Borrower or any ERISA Affiliate, other than a Multiemployer Plan.

EMU Legislation . The legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

Environmental Laws . See §8.15(a).

EPA . See §8.15(b).

ERISA . The Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate . Any Person which is treated as a single employer with the U.S. Borrower under §414(b), (c), (m) or (o) of the Code.

ERISA Reportable Event . A reportable event with respect to a Guaranteed Pension Plan within the meaning of §4043 of ERISA and the regulations promulgated thereunder as to which the requirement of notice has not been waived.

Euro and EUR . The lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

Euro Base Rate . For any day, the rate of interest per annum equal to the sum of (a) the higher of (i) the rate of interest per annum at which overnight deposits in Euro, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by Bank of America-London Branch to major banks in the local market or other applicable offshore interbank market, and (ii) the cost of funds to Bank of America-London Branch with respect to such amount for such day, expressed as a rate of interest per annum plus (b) the Applicable Margin for LIBOR Rate Loans.

Euro Base Rate Loan . European Swingline Loans bearing interest calculated by reference to the Euro Base Rate.

Euro Equivalent . At any time, (a) with respect to any amount denominated in Euro, such amount, and (b) with respect to any amount denominated in any currency other than Euro, the equivalent amount thereof in Euro as determined by the Applicable Agent or the Applicable Issuing Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Euro with such other currency.

Eurocurrency Interbank Market . Any lawful recognized market in which deposits of Dollars, Euro, Australian Dollars and Canadian Dollars are offered by international banking units of United States banking institutions and by foreign banking institutions to each other and in which foreign currency and exchange operations or eurocurrency funding operations are customarily conducted.

 

16

Eurocurrency Reserve Percentage . For any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The LIBOR Rate for each outstanding LIBOR Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.

European Agent . With respect to local funding procedures described herein, Bank of America-London Branch in its capacity as European agent under any of the Loan Documents, and with respect to any other provisions set forth herein, Bank of America, and in each case, any successor European Agent.

European Agent’s Office . With respect to Euro, Bank of America-London Branch’s address and, as appropriate, account as set forth on Schedule 21 (as may be updated from time to time with notice to the European Borrower) with respect to such currency, or such other address or account with respect to such currency as the European Agent may from time to time notify the European Borrower and the Lenders.

European Borrower . See preamble.

European Commitment . As to each European Lender, its obligation to make European Loans to the European Borrower pursuant to §2.1 in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such European Lender’s name on Schedule II hereto, as such Schedule may be updated from time to time pursuant to §§2.10(c) or 20, or in the Assignment and Assumption pursuant to which a European Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Credit Agreement.

European Commitment Fee . See §2.2(b).

European Guarantors . See preamble.

European Lenders . The Lenders listed on Schedule II , acting in their role as lenders of the European Loans and any other Person who becomes an assignee of any rights and obligations of a European Lender pursuant to §20.

European Loans . The revolving credit loans made or to be made by the European Lenders to the European Borrower pursuant to §2.1.

European Notes . See §2.4.

European Obligations . All indebtedness, obligations and liabilities of the European Borrower to the European Lenders, the European Swingline Lender, the Issuing Lender and the European Agent, individually or collectively existing on the date of this Credit Agreement or arising thereafter (a) under or in respect of or in connection with any of the European Notes, Letters of Credit or Letter of Credit Applications in respect of the European Borrower, or European Loans or European Swingline Loans made, or

 

17

Reimbursement Obligations incurred and including any interest thereon, European Commitment Fees or other fees or expenses in respect thereof, (b) under any Hedging Agreement between the European Borrower and any European Lender, the European Swingline Lender, the Issuing Lender, or any Lender Affiliate, and (c) under the Loan Documents.

European Register . See §20.3(b).

European Swingline Lender . Bank of America-London Branch in its capacity as lender of European Swingline Loans hereunder.

European Swingline Loan . Any loan made by the European Swingline Lender to the European Borrower pursuant to §2.7.1 hereof.

European Swingline Sublimit . $10,000,000. The European Swingline Sublimit is part of, and not in addition to, the Aggregate Domestic Revolving Loan Commitments.

Event of Default . See §14.1.

Excluded Taxes . With respect to any Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of a Borrower hereunder or under any Loan Document, (a) income, franchise or similar taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, imposed on a Lender as a result of a present or former connection unrelated to the transactions contemplated hereby between such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein, provided that this exclusion shall not apply with respect to a Tax that would not have been imposed but for any Borrower or any of its Affiliates, after the Closing Date, opening an office in, moving an office to, reincorporating in, or changing the taxing jurisdiction from or through which payments on account of any Loan or Loan Document are made to, the jurisdiction imposing the relevant Tax, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which a branch of any Lender is located and (c) in the case of any Lender (other than an assignee pursuant to a request by a Borrower under §6.11), any withholding tax that is imposed on amounts payable to such Lender at the time such Lender becomes a party to this Credit Agreement or is attributable to such Lender’s failure or inability to comply with §6.12(d) or (e), as applicable, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from a Borrower with respect to such withholding tax pursuant to §6.12.

Existing Credit Agreement . See preamble.

Existing Letters of Credit . Those letters of credit issued by Bank of America for the account of the U.S. Borrower or any of its Restricted Subsidiaries prior to the Closing Date and listed on Schedule III hereto.

Federal Funds Rate . For any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the

 

18

Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

Fee Letter . The fee letter dated as of July 3, 2008 among the Administrative Agent, the Arranger and GWI.

Financial Affiliate . A Subsidiary of the bank holding company controlling any Lender, which Subsidiary is engaging in any of the activities permitted by §4(e) of the Bank Holding Company Act of 1956 (12 U.S.C. §1843).

Foreign Guaranteed Obligations . See §7.1.

Foreign Guarantors . See preamble.

Foreign Loan Party . Collectively, the Canadian Borrower, the European Borrower, the Australian Borrower and the Foreign Guarantors.

Foreign Obligations . Collectively, the Australian Obligations, the Canadian Obligations and the European Obligations.

Foreign Plan . See §8.13.5.

FRA . The United States of America, represented by the Secretary of Transportation acting through the Administrator of Federal Railroad Administration or the Federal Railroad Administrator’s designee.

Fund . Any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

Funded Debt to EBITDAR Ratio . At any date as of which such ratio shall be determined, the ratio of (a) the aggregate outstanding amount of Consolidated Funded Debt on such date to (b) Consolidated EBITDAR for the period of four consecutive fiscal quarters most recently ended.

GAAP or generally accepted accounting principles . (a) When used in §11 and in the calculation of the Funded Debt to EBITDAR Ratio, whether directly or indirectly through reference to a capitalized term used therein, means (i) principles that are consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and (ii) to the extent consistent with such principles, the accounting practice of the Borrowers reflected in GWI’s consolidated financial statements for the year ended on the Balance Sheet Date, and (b) when used in

 

19

general, other than as provided above, means principles that are (i) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors, as in effect from time to time, and (ii) consistently applied with past financial statements of the Borrowers adopting the same principles.

Governing Documents . With respect to any Person, its certificate or articles of incorporation, its by-laws or, as the case may be, its certificate of formation, its operating agreement or other constitutive documents and all shareholder agreements, voting trusts and similar arrangements applicable to any of its Capital Stock.

Governmental Authority . Any foreign, federal, state, regional, local, municipal or other government, or any department, commission, board, bureau, agency, public authority or instrumentality thereof, or any court or arbitrator (including any supra-national bodies such as the European Union or the European Central Bank).

Guaranteed Obligations . Collectively, the U.S. Guaranteed Obligations and the Foreign Guaranteed Obligations.

Guaranteed Pension Plan . Any employee pension benefit plan within the meaning of §3(2) of ERISA maintained or contributed to by the U.S. Borrower or any ERISA Affiliate the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.

Guarantors . Collectively, GWI, Quebec, the Foreign Guarantors and the U.S. Guarantors, each of which guaranty certain Obligations pursuant to §7 hereof.

Guaranty . The guaranty of certain Obligations by each of the Guarantors set forth in §7 of this Credit Agreement.

GWI . See preamble.

Hazardous Substances . See §8.15(b).

Hedging Agreement . Any agreement, device or arrangement providing for payments which are related to fluctuations of interest rates, exchange rates, forward rates or other indices, including, but not limited to, credit default swaps, equity derivatives, dollar-denominated or cross-currency interest rate agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, commodity swap agreements, commodity options, puts and warrants.

Huron . Huron Central Railway Inc., a corporation constituted under the laws of Ontario, Canada.

Indebtedness . As to any Person and whether recourse is secured by or is otherwise available against all or only a portion of the assets of such Person and whether or not contingent, but without duplication:

(a) every obligation of such Person for money borrowed,

 

20

(b) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments,

(c) every reimbursement obligation of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person,

(d) every obligation of such Person issued or assumed as the deferred purchase price of property or services (including securities repurchase agreements but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business which are not more than 90 days overdue or which are being contested in good faith),

(e) every obligation of such Person under any Capitalized Lease,

(f) every obligation of such Person under any Hedging Agreement,

(g) every obligation in respect of Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent that such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor and such terms are enforceable under applicable law,

(h) every obligation, contingent or otherwise, of such Person guarantying, or having the economic effect of guarantying or otherwise acting as surety for, any obligation of a type described in any of clauses (a) through (g) (the “ primary obligation ”) of another Person (the “ primary obligor ”), in any manner, whether directly or indirectly, and including, without limitation, any obligation of such Person (i) to purchase or pay (or advance or supply funds for the purchase of) any security for the payment of such primary obligation, (ii) to purchase property, securities or services for the purpose of assuring the payment of such primary obligation, or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such primary obligation.

The “ amount ” or “ principal amount ” of any Indebtedness at any time of determination represented by (w) any Indebtedness, issued at a price that is less than the principal amount at maturity thereof, shall be the amount of the liability in respect thereof determined in accordance with GAAP, (x) any Capitalized Lease shall be the principal component of the aggregate of the rentals obligation under such Capitalized Lease payable over the term thereof that is not subject to termination by the lessee, (y) any Hedging Agreement shall be the maximum amount of any termination or loss payment required to be paid by such Person if such Hedging Agreement were, at the time of determination, to be terminated by reason of any event of default or early termination event thereunder, whether or not such event of default or early termination event has in fact occurred, and (z) any guaranty or other contingent liability referred to in clause (h) shall be an amount equal to the stated or determinable amount of the primary obligation in respect of which such guaranty or other contingent obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

 

21

Indemnified Taxes . Taxes other than Excluded Taxes.

Indirect Tax . Any goods and services tax, consumption tax, value added tax or any tax of a similar nature.

Instrument of Adherence (Guaranty) . See §9.14.

Interest Payment Date . (a) As to any Base Rate Loan or Canadian Base Rate Loan, the last day of the calendar quarter; (b) as to any LIBOR Rate Loan in respect of which the Interest Period is (A) 3 months or less, the last day of such Interest Period and (B) more than 3 months, the date that is 3 months from the first day of such Interest Period and on the last day of the Interest Period; and (c) with respect to any Swingline Loan, the day that such Swingline Loan is required to be repaid.

Interest Period . With respect to each Loan (a) initially, the period commencing on the Drawdown Date of such Loan and ending on the last day of one of the periods set forth below, as selected by a Borrower in a Loan Request or resulting from a conversion under §§2.8 or 3.5 (i) for any Base Rate Loan or Canadian Base Rate Loan, the last day of the calendar quarter; and (ii) for any LIBOR Rate Loan, 1, 2, 3 or 6 (or, if agreed to by all Lenders, 9 or 12) months; and (b) thereafter, each period commencing on the last day of the preceding Interest Period applicable to such Loan and ending on the last day of one of the periods set forth above, as selected by the Applicable Borrower; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

(a) if any Interest Period with respect to a LIBOR Rate Loan would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day;

(b) if any Interest Period with respect to a Base Rate Loan would end on a day that is not a Business Day, that Interest Period shall end on the next succeeding Business Day;

(c) if any Borrower shall fail to give notice as provided in §§2.8 or 3.5, such Borrower shall be deemed to have requested a conversion of the affected LIBOR Rate Loan to a one month LIBOR Rate Loan and the continuance of all Base Rate Loans or Canadian Base Rate Loans, as the case may be, as Base Rate Loans or Canadian Base Rate Loans, as the case may be, on the last day of the then current Interest Period with respect thereto;

(d) any Interest Period relating to any LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month;

(e) any Interest Period that would otherwise extend beyond the Maturity Date shall end on the Maturity Date; and

 

22

(f) interest shall accrue for the first day of each Interest Period and each day thereafter up to but (provided that interest is timely paid) not including the last day of such Interest Period.

International Standby Practices . With respect to any standby Letter of Credit, International Standby Practices (ISP98) as promulgated by the Institute of International Banking Law & Practice, Inc., or any successor code of standby letter of credit practices among banks adopted by the Issuing Lender in the ordinary course of its business as a standby letter of credit issuer and in effect at the time of issuance of such Letter of Credit.

Investments . All expenditures made and all liabilities incurred (contingently or otherwise) for the acquisition of stock or Indebtedness of, or for loans, advances, capital contributions or transfers of property to (other than dispositions of property permitted by §10.5.3), or in respect of any guaranties (or other commitments as described under Indebtedness), or obligations of, any Person. In determining the aggregate amount of Investments outstanding at any particular time: (a) the amount of any Investment represented by a guaranty shall be taken at not less than the principal amount of the obligations guaranteed and still outstanding; (b) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (c) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); (d) without duplication there shall be deducted in respect of any Investment any amounts received as cash earnings on such Investment, whether as dividends, interest or otherwise; and (e) there shall not be deducted from the aggregate amount of Investments any decrease in the value thereof.

Issuer Document . With respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Issuing Lender and Applicable Borrower (or any Subsidiary) or in favor of the Issuing Lender and relating to any such Letter of Credit.

Issuing Lender . Bank of America, in its capacity as issuer of Letters of Credit pursuant to §5, or any successor issuer of Letters of Credit hereunder.

Lender Affiliate . With respect to any Lender, (a) an Affiliate of such Lender or (b) any Approved Fund.

Lenders . The Domestic Lenders, the European Lenders, the Canadian Lenders and the Australian Lenders parties hereto and any other Person who becomes an assignee of any rights and obligations of a Lender pursuant to §20. In addition, unless the context otherwise requires, the term “Lenders” includes the Swingline Lenders and the Issuing Lender.

Letter of Credit . See §5.1.1.

Letter of Credit Application . See §5.1.1.

 

23

Letter of Credit Borrowing . An extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Domestic Revolving Loan, European Loan, Canadian Revolving Loan or Australian Loan.

Letter of Credit Expiration Date . The day that is seven days prior to the Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).

Letter of Credit Fee . See §5.10.

Letter of Credit Obligations . As of any date, the sum of the Maximum Drawing Amount as of such date and all Unpaid Reimbursement Obligations as of such date. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with §5.8. For all purposes of this Credit Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the International Standby Practices, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

Letter of Credit Participation . See §5.1.4.

Letter of Credit Sublimit . See §5.1.1.

LIBOR Lending Office . Initially, the office of each Lender designated as such in Schedule II hereto; thereafter, such other office of such Lender, if any, that shall be making or maintaining LIBOR Rate Loans.

LIBOR Rate . For any Interest Period with respect to a LIBOR Rate Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:

 

Where,

“ LIBOR Base Rate ” means, for such Interest Period, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “LIBOR Base Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the LIBOR Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America-London Branch (or other Bank of America branch or Affiliate) to major banks in the London or other offshore interbank market for such currency at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

 

24

LIBOR Rate Loans . Loans bearing interest calculated by reference to the LIBOR Rate.

Lien . Any mortgage, deed of trust, security interest, pledge, hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien (statutory, judgment or otherwise), or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any Capitalized Lease, or any financing lease involving substantially the same economic effect as any of the foregoing).

Loan Documents . Collectively, this Credit Agreement, the Notes, the Letter of Credit Applications, the Letters of Credit, the Fee Letter and any Instruments of Adherence executed in connection herewith.

Loan Party . Collectively, each Borrower and Guarantor.

Loan Request . See §2.6(a).

Loans . Collectively, the Domestic Revolving Loans, the European Loans, the Australian Loans, the Domestic Term Loan, the Swingline Loans, the Canadian Revolving Loans and the Canadian Term Loan.

Mandatory Cost . With respect to any period, the percentage rate per annum determined in accordance with Schedule 1.1 .

Material Adverse Effect . With respect to any event or occurrence of whatever nature (including any adverse determination in any litigation, arbitration or governmental investigation or proceeding):

(a) a material adverse effect on the business, properties, financial condition, assets, operations or income of the Borrowers and their Restricted Subsidiaries, taken as a whole; or

(b) a material adverse effect on the rights, remedies or benefits available to any Agent or any Lender under any Loan Document.

Maturity Date . The fifth anniversary of the Closing Date, or such earlier date as the Obligations become due and payable pursuant to the terms of this Credit Agreement.

Maximum Drawing Amount . The sum of the maximum aggregate amount that the beneficiaries may at any time draw under outstanding Letters of Credit, as such aggregate amount may be reduced from time to time pursuant to the terms of the Letters of Credit.

Moody’s . Moody’s Investors Services, Inc.

Multiemployer Plan . Any multiemployer plan within the meaning of §3(37) of ERISA maintained or contributed to by the U.S. Borrower or any ERISA Affiliate.

 

25

Non-Guarantor Subsidiary . Each Unrestricted Subsidiary and any Subsidiary that is not a Loan Party.

Non-U.S. Lender . See §6.12(d).

Note Record . The grid attached to a Note, or the continuation of such grid, or any other similar record, including computer records, maintained by any Lender with respect to any Loan referred to in such Note.

Notes . Collectively, the Domestic Notes, the Australian Notes, the European Notes and the Canadian Notes.

Obligations . Collectively or individually, as the context requires, the U.S. Obligations and the Foreign Obligations.

Other Taxes . See §6.12(b).

Outstanding or outstanding . With respect to the Loans, the aggregate unpaid principal thereof as of the date of determination.

Participant . See §20.4.

Participating Member State . Each state so described in any EMU Legislation.

Payment Event of Default . See §6.10.

PBGC . The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor entity or entities having similar responsibilities.

Pension Funding Rules . The rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Guaranteed Pension Plans and set forth in, with respect to plan years ending prior to the effective date as to such Guaranteed Pension Plan of the Pension Protection Act of 2006, §412 of the Code and §302 of ERISA each as in effect prior to the Pension Protection Act of 2006 and, thereafter, §§412 and 430 of the Code and §§302 and 303 of ERISA.

Permitted Acquisition(s) . See §10.5.2.

Permitted Liens . Liens permitted by §10.2.

Person . Any individual, corporation, limited liability company, partnership, limited liability partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof.

Planned Acquisition . The acquisition by the U.S. Borrower, directly or indirectly, of all of the outstanding ownership interests in the Target.

Platform . See §9.4.

 

26

Public Lender . See §9.4.

Purchase Price . With respect to any Permitted Acquisition, all consideration (other than consideration in the form of Capital Stock of any Borrower or any Restricted Subsidiary) payable by any of the Borrowers or any of their Restricted Subsidiaries in connection with such Permitted Acquisition, including, without limitation, cash payments, the principal amount of any promissory notes issued by any of the Borrowers or any of their Restricted Subsidiaries, any amounts payable by any of the Borrowers or any of their Restricted Subsidiaries in consideration for any non-compete covenant, deferred purchase price, earn-out or similar payment and the amount of any Indebtedness assumed by any of the Borrowers or any of their Restricted Subsidiaries.

Purchasing Lender . See §32(c).

Quebec . See preamble.

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.

Reallocation . A transfer by the Applicable Borrower of a portion of the Aggregate Domestic Revolving Loan Commitments or all or a portion of the Aggregate Canadian Revolving Loan Commitments or all or a portion of the Aggregate European Commitments or all or a portion of the Aggregate Australian Commitments in accordance with §2.10 hereof.

Regulation S-X . Regulation S-X as defined and promulgated by the United States Securities and Exchange Commission.

Reimbursement Obligation . Each Borrower’s obligation to reimburse the Issuing Lender and the Applicable Lenders on account of any drawing under any Letter of Credit as provided in §5.2.

Related Parties . With respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

Replacement Lender . See §6.11.

Required Australian Lenders . As of any date, any two or more Australian Lenders holding more than fifty percent (50%) of the Aggregate Australian Commitments or, if the commitment of each Australian Lender to make Australian Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of Australian Lenders holding in the aggregate more than 50% of the Total Australian Exposure (with the aggregate amount of each Australian Lender’s risk participation and funded participation in Letter of Credit Obligations, being deemed “held” by such Lender for purposes of this definition).

Required Canadian Lenders . As of any date, any two or more Canadian Lenders holding in the aggregate more than fifty percent (50%) of the outstanding principal amount of the Canadian Term Loan and the Aggregate Canadian Revolving Loan Commitments

 

27

or, if the commitment of each Canadian Lender to make Canadian Revolving Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of Canadian Lenders holding in the aggregate more than 50% of the principal amount of the Canadian Term Loan outstanding and the Total Canadian Revolver Exposure (with the aggregate amount of each Canadian Lender’s risk participation and funded participation in Letter of Credit Obligations, being deemed “held” by such Lender for purposes of this definition).

Required Domestic Lenders . As of any date, any two or more Domestic Lenders holding in the aggregate more than fifty percent (50%) of the outstanding principal amount of the Domestic Term Loan and the Aggregate Domestic Revolving Loan Commitments or, if the commitment of each Domestic Lender to make Domestic Revolving Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of Domestic Lenders holding in the aggregate more than 50% of the principal amount of the Domestic Term Loan outstanding and the Total Domestic Revolver Exposure (with the aggregate amount of each Domestic Lender’s risk participation and funded participation in Letter of Credit Obligations and Swingline Loans, as applicable, being deemed “held” by such Lender for purposes of this definition).

Required European Lenders . As of any date, any two or more European Lenders holding more than fifty percent (50%) of the Aggregate European Commitments or, if the commitment of each European Lender to make European Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of European Lenders holding in the aggregate more than 50% of the Total European Exposure (with the aggregate amount of each European Lender’s risk participation and funded participation in Letter of Credit Obligations, being deemed “held” by such Lender for purposes of this definition).

Required Lenders . As of any date, any two or more Lenders holding in the aggregate more than fifty percent (50%) of the outstanding principal amounts of the Term Loans and the Total Commitments or, if the commitment of each Lender to make Loans and the obligation of the Issuing Lender to issue or extend Letters of Credit have been terminated pursuant to §14.2, any combination of Lenders holding in the aggregate more than 50% of the Total Exposure (with the aggregate amount of each Lender’s risk participation and funded participation in Letter of Credit Obligations and Swingline Loans, as applicable, being deemed “held” by such Lender for purposes of this definition).

Restricted Payments . In relation to the Borrowers and their Restricted Subsidiaries, any (a) Distribution or (b) derivatives or other transactions with any financial institution, commodities or stock exchange or clearinghouse (a “ Derivatives Counterparty ”) obligating the Borrowers or any Restricted Subsidiary to make payments to such Derivatives Counterparty as a result of any change in market value of any Capital Stock of the Borrowers or such Restricted Subsidiary.

Restricted Subsidiaries . Any Subsidiary which is not an Unrestricted Subsidiary. The Borrowers shall not have the right to change the status of an Unrestricted Subsidiary to a Restricted Subsidiary unless (a) such Unrestricted Subsidiary becomes a Guarantor hereunder or (b) such Unrestricted Subsidiary would fit within the exception set forth in the last sentence of §9.14. The Borrowers shall not have the right to change the status of a Restricted Subsidiary to an Unrestricted Subsidiary without the consent of the Required Lenders.

 

28

Revaluation Date . (a) With respect to any Loan, each of the following: (i) each date of a borrowing of a LIBOR Rate Loan denominated in an Alternative Currency, (ii) each date of a continuation of a LIBOR Rate Loan denominated in an Alternative Currency pursuant to §2.8.2, and (iii) such additional dates as the Applicable Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the Issuing Lender under any Letter of Credit denominated in an Alternative Currency, and (iv) such additional dates as the Applicable Agent or the Issuing Lender shall determine or the Required Lenders shall require.

S&P . Standard & Poor’s Ratings Group.

Same Day Funds . With respect to disbursement and payments (a) in Dollars, immediately available funds, and (b) in Canadian Dollars, Euro or Australian Dollars, same day or other funds as may be determined by the Applicable Agent or the Issuing Lender, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in Canadian Dollars, Euro or Australian Dollars.

Senior Notes . (a) The 4.85% Series 2004-A notes and any other notes issued by GWI pursuant to the Note Purchase Agreement dated as of November 12, 2004, as amended, modified or supplemented from time to time, and (b) any other notes issued in a private placement by GWI under any replacement note purchase agreement or any additional note purchase agreement entered into after the Closing Date.

Solvent . See §8.5.2.

Spot Rate . For a currency, the rate determined by the Applicable Agent or the Issuing Lender, as applicable, as conclusively ascertained absent manifest error to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Applicable Agent or the Issuing Lender may obtain such spot rate from another financial institution designated by the Applicable Agent or the Issuing Lender if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.

STB . The Surface Transportation Board or any governmental authority(ies) which succeeds to the function or duties of the Surface Transportation Board or any portion thereof.

Subsidiary . Any corporation, association, trust, or other business entity of which the designated parent shall at any time own directly or indirectly through a subsidiary or subsidiaries at least a majority (by number of votes) of the outstanding Voting Stock.

 

29

Swingline Expiry Date . The date which is five (5) Business Days prior to the Maturity Date.

Swingline Exposure . At any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Commitment Percentage of the total Swingline Exposure at such time.

Swingline Loan . Any Domestic Swingline Loan, Canadian Swingline Loan, European Swingline Loan or Australian Swingline Loan, as the context requires.

Swingline Loan Request . See §2.7.2.

Syndication Agent . See preamble.

Target . That certain Person, the identity of which has been disclosed to the Administrative Agent as “Project Harrison”, proposed to be acquired in connection with the Planned Acquisition.

TARGET Day . Any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

Taxes . Any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any foreign, federal, state, regional, local, municipal or other government, or any department, commission, board, bureau, agency, public authority or instrumentality thereof, or any court or arbitrator.

Term Loans . Collectively, the Domestic Term Loan and the Canadian Term Loan.

Total Australian Exposure . At any time, the Dollar Equivalent of the sum of the outstanding Australian Loans and Letter of Credit Obligations with respect to the Australian Borrower.

Total Canadian Revolver Exposure . At any time, the Dollar Equivalent of the sum of the outstanding Canadian Revolving Loans and Letter of Credit Obligations with respect to the Canadian Borrower.

Total Commitment . The sum of the Aggregate Domestic Revolving Loan Commitments, the Aggregate Canadian Revolving Loan Commitments, the Aggregate Australian Commitments and the Aggregate European Commitments, as in effect from time to time.

Total Domestic Revolver Exposure . At any time, the sum of the outstanding Domestic Revolving Loans, the Letter of Credit Obligations with respect to the U.S. Borrower, and Swingline Loans.

 

30

Total European Exposure . At any time, the Dollar Equivalent of the sum of the outstanding European Loans and Letter of Credit Obligations with respect to the European Borrower.

Total Exposure . At any time, the sum of the Total Domestic Revolver Exposure, the Total European Exposure, the Total Australian Exposure, the Total Canadian Revolver Exposure and the Dollar Equivalent of the outstanding principal amount of the Term Loans.

Type . (a) As to any Domestic Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan, (b) as to any Canadian Loan, its nature as a Canadian Base Rate Loan or a LIBOR Rate Loan or (c) as to any European Loan or Australian Loan, its nature as a LIBOR Rate Loan.

U.S. Borrower . See preamble.

U.S. Guaranteed Obligations . See §7.1.

U.S. Guarantors . See preamble.

U.S. Loan Party . Collectively, the U.S. Borrower and the U.S. Guarantors.

U.S. Obligations . All indebtedness, obligations and liabilities of the U.S. Borrower to the Domestic Lenders (including the Domestic Swingline Lender and the Issuing Lender) and the Administrative Agent individually or collectively existing on the date of this Credit Agreement or arising thereafter (a) under or in respect of or in connection with any of the Domestic Notes, Letters of Credit or Letter of Credit Applications in respect of the U.S. Borrower, or Domestic Loans or Domestic Swingline Loans made, or Reimbursement Obligations incurred and including any interest thereon, Domestic Revolving Loan Commitment Fees or other fees or expenses in respect thereof, (b) under any Hedging Agreement between the U.S. Borrower and any Lender (including the Domestic Swingline Lender and the Issuing Lender) or any Lender Affiliate, (c) under the Loan Documents and (d) in respect of any cash management services provided by a Lender to the U.S. Borrower.

Unpaid Reimbursement Obligation . Any Reimbursement Obligation for which the Applicable Borrower does not reimburse the Issuing Lender and the Applicable Lenders on the date specified in, and in accordance with, §5.2.

Unrestricted Subsidiaries . The Subsidiaries of the Borrowers as reflected in Schedule 8.16(a) hereto. The Borrowers shall not have the right to change the status of an Unrestricted Subsidiary to a Restricted Subsidiary unless such Subsidiary (a) is a U.S., Canadian, Dutch or Australian Subsidiary of a Borrower or Restricted Subsidiary and (b)(i) shall become a Guarantor or (ii) fits within the exception set forth in the last sentence of §9.14(a) hereto.

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.

 

31

1.2. Rules of Interpretation .

(a) A reference to any document or agreement shall include such document or agreement as amended, modified or supplemented from time to time in accordance with its terms and the terms of this Credit Agreement.

(b) The singular includes the plural and the plural includes the singular.

(c) A reference to any law includes any amendment or modification to such law.

(d) A reference to any Person includes its permitted successors and permitted assigns.

(e) Accounting terms not otherwise defined herein have the meanings assigned to them by generally accepted accounting principles applied on a consistent basis by the accounting entity to which they refer.

(f) The words “include”, “includes” and “including” are not limiting.

(g) All terms not specifically defined herein or by generally accepted accounting principles, which terms are defined in the Uniform Commercial Code as in effect in the State of New York, have the meanings assigned to them therein, with the term “instrument” being that defined under Article 9 of the Uniform Commercial Code.

(h) Reference to a particular “§” 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.

(j) Unless otherwise expressly indicated, in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding,” and the word “through” means “to and including.”

(k) This Credit Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are, however, cumulative and are to be performed in accordance with the terms thereof.

(l) This Credit Agreement and the other Loan Documents are the result of negotiation among, and have been reviewed by counsel to, among others, the Administrative Agent and the Borrowers and are the product of discussions and negotiations among all parties. Accordingly, this Credit Agreement and the other Loan Documents are not intended to be construed against any party merely on account of such party’s involvement in the preparation of such documents.

 

32

2.

THE REVOLVING CREDIT FACILITIES .

2.1. Commitment to Lend . Subject to the terms and conditions set forth in this Credit Agreement, each of the Applicable Lenders severally agrees (a) on the Closing Date, to convert the revolving credit loans and letters of credit outstanding under the Existing Credit Agreement, if any, to Domestic Revolving Loans and Letters of Credit under this Credit Agreement and (b) to lend (i) to the U.S. Borrower in Dollars, (ii) to the European Borrower in Euro, (iii) to the Canadian Borrower in Canadian Dollars and/or (iv) to the Australian Borrower in Australian Dollars, and such Borrower may borrow, repay, and reborrow from time to time between the Closing Date and the Maturity Date upon notice by such Borrower to the Applicable Agent given in accordance with §2.6, such sums as are requested by such Borrower up to a maximum aggregate principal amount outstanding (after giving effect to all amounts requested) at any one time equal to such Lender’s Commitment, minus the amount of such Lender’s Commitment Percentage of the Letter of Credit Obligations in respect of such Borrower; provided , (A) that the Total Domestic Revolver Exposure (after giving effect to all amounts requested) does not exceed the Aggregate Domestic Revolving Loan Commitments, (B) the Total European Exposure (after giving effect to all amounts requested) does not exceed the Aggregate European Commitments, (C) the Total Canadian Revolver Exposure (after giving effect to all amounts requested) does not exceed the Aggregate Canadian Revolving Loan Commitments, and (D) the Total Australian Exposure (after giving effect to all amounts requested) does not exceed the Aggregate Australian Commitments. The Loans under this §2.1 shall be made pro rata in accordance with each Lender’s Commitment Percentage. Subject to §2.10, the Domestic Revolving Loan Commitments, the Australian Commitments, the Canadian Revolving Loan Commitments and the European Commitments shall only be available to the U.S. Borrower, the Australian Borrower, the Canadian Borrower and the European Borrower, respectively, and if unused by such Borrower, will not be available to any other Borrower. Each request for a Loan hereunder shall constitute a representation and warranty by the Applicable Borrower that the conditions set forth in §12 and §13 hereof, in the case of the initial Loans to be made on the Closing Date, and §13 hereof, in the case of all other Loans, have been satisfied on the date of such request.

2.2. Commitment Fee .

(a) The U.S. Borrower hereby agrees to pay to the Administrative Agent for the accounts of the Domestic Lenders in accordance with their respective Commitment Percentages, a commitment fee in Dollars (the “ Domestic Revolving Loan Commitment Fee ”) at the applicable Commitment Fee Rate per annum on the actual daily amount during each calendar quarter or portion thereof from the Closing Date to the Maturity Date by which the Aggregate Domestic Revolving Loan Commitments exceed the Total Domestic Revolver Exposure (excluding the outstanding principal amount of the Swingline Loans).

(b) The European Borrower hereby agrees to pay to the European Agent for the accounts of the European Lenders in accordance with their respective Commitment Percentages, a commitment fee in Dollars (the “ European Commitment Fee ”) at the applicable Commitment Fee Rate per annum on the actual daily amount during each calendar quarter or portion thereof from the Closing Date to the Maturity Date by which the Aggregate European Commitments exceed the Total European Exposure.

 

33

(c) The Canadian Borrower hereby agrees to pay to the Canadian Agent for the accounts of the Canadian Lenders in accordance with their respective Commitment Percentages, a commitment fee in Dollars (the “ Canadian Revolving Loan Commitment Fee ”) at the applicable Commitment Fee Rate per annum on the actual daily amount during each calendar quarter or portion thereof from the Closing Date to the Maturity Date by which the Aggregate Canadian Revolving Loan Commitments exceed the Total Canadian Revolver Exposure.

(d) The Australian Borrower hereby agrees to pay to the Australian Agent for the accounts of the Australian Lenders in accordance with their respective Commitment Percentages, a commitment fee in Dollars (the “ Australian Commitment Fee ”) at the applicable Commitment Fee Rate per annum on the actual daily amount during each calendar quarter or portion thereof from the Closing Date to the Maturity Date by which the Aggregate Australian Commitments exceed the Total Australian Exposure.

(e) The Commitment Fees shall be payable quarterly in arrears within three (3) days of the last day of each calendar quarter for the immediately preceding calendar quarter commencing on the first such date following the 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 Applicable Commitments . Each Borrower shall have the right at any time and from time to time upon three (3) Business Days prior written notice to the Applicable Agent to reduce by $5,000,000 or a whole multiple of $1,000,000 in excess thereof or to terminate entirely the applicable Commitment, whereupon the applicable Commitments of the Lenders shall be reduced pro rata in accordance with their respective Commitment Percentages of the amount specified in such notice or, as the case may be, terminated. Promptly after receiving any notice of such Borrower delivered pursuant to this §2.3, the Applicable Agent will notify the Applicable Lenders of the substance thereof. No reduction or termination of the applicable Commitments may be reinstated.

2.4. Evidence of Debt . The Loans made pursuant to §2.1 by each Applicable Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Applicable Agent in the ordinary course of business. The accounts or records maintained by the Agents and each Lender shall be conclusive absent manifest error of the amount of the Loans made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of any Borrower hereunder to pay any amount owing with respect to the applicable Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Applicable Agent in respect of such matters, the accounts and records of the Applicable Agent shall

 

34

control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Applicable Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note (a) in the case of the U.S. Borrower, in substantially the form of Exhibit A-1 hereto (each a “ Domestic Revolving Note ”), (b) in the case of the European Borrower, in substantially the form of Exhibit   A-2 hereto (each a “ European Note ”), (c) in the case of the Australian Borrower, in substantially the form of Exhibit   A-3 hereto (each an “ Australian Note ”) and (d) in the case of the Canadian Borrower, in substantially the form of Exhibit A-4 hereto (each, a “ Canadian Revolving Note ”), in each case dated as of the Closing Date (or other such date on which a Lender may become a party hereto in accordance with §20 hereof) and completed with appropriate insertions. Each such Note shall be payable to the order of the Applicable Lender and shall evidence such Lender’s applicable Loans in addition to such accounts or records. Each such Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

2.5. Interest on the Loans . Except as otherwise provided in §6.10:

(a) Each Domestic Revolving Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto at a rate per annum equal to (i) the Base Rate plus the Applicable Margin with respect to Base Rate Loans as in effect from time to time or (ii) the LIBOR Rate determined for such Interest Period plus the Applicable Margin with respect to LIBOR Rate Loans as in effect from time to time.

(b) Each Canadian Revolving Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto at a rate per annum equal to (i) the Canadian Base Rate plus the Applicable Margin with respect to Canadian Base Rate Loans as in effect from time to time or (ii) the LIBOR Rate determined for such Interest Period plus the Applicable Margin with respect to LIBOR Rate Loans as in effect from time to time.

(c) Each European Loan and Australian Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto at a rate per annum equal to the LIBOR Rate determined for such Interest Period plus the Applicable Margin with respect to LIBOR Rate Loans as in effect from time to time plus (in the case of a LIBOR Rate Loan of any Lender which is made from such Lender’s LIBOR Lending Office in the United Kingdom or a Participating Member State) the Mandatory Cost.

(d) Each Borrower promises to pay interest on the outstanding amount of its applicable Loans on each Interest Payment Date with respect thereto.

(e) If, as a result of any restatement of or other adjustment to the financial statements of the Borrowers and their Restricted Subsidiaries or for any other reason, the Borrowers or the Lenders determine that (i) the Funded Debt to EBITDAR Ratio as calculated by the Borrowers as of any applicable date was inaccurate and (ii) a proper calculation of the Funded Debt to

 

35

EBITDAR Ratio would have resulted in higher pricing for such period, each Borrower shall immediately and retroactively be obligated to pay to the Applicable Agent for the account of the Applicable Lenders or the Issuing Lender, as the case may be, promptly on demand by the Administrative Agent or any other Applicable Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States, automatically and without further action by any Agent, any Lender or the Issuing Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of any Agent, any Lender or the Issuing Lender, as the case may be, under §§5.10, 6.10, or 14. Each Borrower’s obligations under this paragraph shall survive the termination of the Total Commitment and the repayment of all other Obligations hereunder.

2.6. Requests for Loans .

(a) The U.S. Borrower shall give to the Administrative Agent written notice in the form of Exhibit   C-1 hereto (a “ Loan Request ”) (or telephonic notice confirmed in a writing in the form of Exhibit   C-1 hereto) of each Domestic Revolving Loan requested hereunder not later than (i) one (1) Business Day prior to any Drawdown Date of any Base Rate Loan or (ii) three (3) Business Days prior to any Drawdown Date of any LIBOR Rate Loan. Each Loan Request shall be in a minimum aggregate amount of $500,000 or an integral multiple thereof.

(b) The European Borrower shall give to the European Agent a Loan Request of each European Loan requested hereunder not later than three (3) Business Days prior to any Drawdown Date of any LIBOR Rate Loan.

(c) The Canadian Borrower shall give to the Canadian Agent a Loan Request of each Canadian Revolving Loan requested hereunder not later than (i) one (1) Business Day prior to any Drawdown Date of any Canadian Base Rate Loan or (ii) three (3) Business Days prior to any Drawdown Date of any LIBOR Rate Loan.

(d) The Australian Borrower shall give to the Australian Agent a Loan Request of each Australian Loan requested hereunder not later than four (4) Business Days prior to any Drawdown Date of any LIBOR Rate Loan.

(e) Each Loan Request shall specify (i) the principal amount of the applicable Loan requested, (ii) the proposed Drawdown Date of such Loan, (iii) the Interest Period for such Loan and (iv) the Type, if applicable, of such Loan. Promptly upon receipt of any such notice, the Applicable Agent shall notify each of the Applicable Lenders thereof. Each such Loan Request shall be irrevocable and binding on the Applicable Borrower and shall obligate the Applicable Borrower to accept the requested Loan on the proposed Drawdown Date thereof.

 

36

2.7. The Swinglines .

2.7.1. Swingline Loans .

(a) Subject to the terms and conditions hereinafter set forth, upon notice by the U.S. Borrower made to the Domestic Swingline Lender in accordance with §2.7.2 hereof, the Domestic Swingline Lender agrees to lend to the U.S. Borrower Domestic Swingline Loans in Dollars on any Business Day prior to the Swingline Expiry Date in an aggregate principal amount not to exceed the Domestic Swingline Sublimit. Each Domestic Swingline Loan shall be in a minimum amount equal to $500,000 or a multiple of $100,000 in excess thereof. The Domestic Swingline Loans are being made for the administrative convenience of the U.S. Borrower, the Domestic Swingline Lender and the Lenders.

(b) Subject to the terms and conditions hereinafter set forth, upon notice by the European Borrower made to the European Swingline Lender in accordance with §2.7.2 hereof, the European Swingline Lender agrees to lend to the European Borrower European Swingline Loans in Euro on any Business Day prior to the Swingline Expiry Date in an aggregate principal amount not to exceed the European Swingline Sublimit. Each European Swingline Loan shall be in a minimum amount equal to the Euro Equivalent of $500,000 or a multiple of the Euro Equivalent of $100,000 in excess thereof. The European Swingline Loans are being made for the administrative convenience of the European Borrower, the European Swingline Lender and the Lenders.

(c) Subject to the terms and conditions hereinafter set forth, upon notice by the Canadian Borrower made to the Canadian Swingline Lender in accordance with §2.7.2 hereof, the Canadian Swingline Lender agrees to lend to the Canadian Borrower Canadian Swingline Loans in Canadian Dollars on any Business Day prior to the Swingline Expiry Date in an aggregate principal amount not to exceed the Canadian Swingline Sublimit. Each Canadian Swingline Loan shall be in a minimum amount equal to the Canadian Dollar Equivalent of $500,000 or a multiple of the Canadian Dollar Equivalent of $100,000 in excess thereof. The Canadian Swingline Loans are being made for the administrative convenience of the Canadian Borrower, the Canadian Swingline Lender and the Lenders.

(d) Subject to the terms and conditions hereinafter set forth, upon notice by the Australian Borrower made to the Australian Swingline Lender in accordance with §2.7.2 hereof, the Australian Swingline Lender agrees to lend to the Australian Borrower Australian Swingline Loans in Australian Dollars on any Business Day prior to the Swingline Expiry Date in an aggregate principal amount not to exceed the Australian Swingline Sublimit. Each Australian Swingline Loan shall be in a minimum amount equal to the Australian Dollar Equivalent of $500,000 or a multiple of the Australian Dollar Equivalent of $100,000 in excess thereof. The Australian Swingline Loans are being made for the administrative convenience of the Australian Borrower, the Australian Swingline Lender and the Lenders.

 

37

(e) Notwithstanding any other provisions of this Credit Agreement (i) in addition to the limits set forth in clauses (a) through (d) above, at no time shall the Total Domestic Revolver Exposure exceed the Aggregate Domestic Revolving Loan Commitments at such time and (ii) the Applicable Swingline Lender shall not advance any Swingline Loans after it has received notice from any Lender or any Agent that a Default or Event of Default has occurred and is continuing and stating that no new Swingline Loans are to be made until such Default or Event of Default has been cured or waived in accordance with the provisions of this Credit Agreement. The Applicable Swingline Lender shall not be obligated to make any Swingline Loans at any time when any Lender is a Delinquent Lender unless such Swingline Lender has entered into arrangements satisfactory to it to eliminate such Swingline Lender’s risk with respect to such Delinquent Lender, including by cash collateralizing such Delinquent Lender’s Commitment Percentage of the outstanding Swingline Loans and any such additional Swingline Loans to be made. Within the foregoing limits and subject to the terms and conditions set forth herein, each Borrower may borrow, prepay and reborrow Domestic Swingline Loans, European Swingline Loans, Canadian Swingline Loans or Australian Swingline Loans, as applicable.

2.7.2. Request for Swingline Loans . To request a Swingline Loan, the Applicable Borrower shall send to the Administrative Agent and the Applicable Swingline Lender written notice in the form of Exhibit   C-2 hereto (or, in the case of the U.S. Borrower, telephonic notice confirmed in a writing in the form of Exhibit   C-2 hereto) of each Swingline Loan requested hereunder (a “ Swingline Loan Request ”) not later than 1:00 p.m. (Eastern time), in respect of the U.S. Borrower or Canadian Borrower, or 11:00 a.m. (London time), in respect of the European Borrower, or 11:00 a.m. (Sydney time), in respect of the Australian Borrower, on the proposed Drawdown Date of any Swingline Loan. Each such Swingline Loan Request shall set forth the principal amount of the proposed Swingline Loan and the Drawdown Date of such Swingline Loan. Each Swingline Loan Request shall be irrevocable and binding on the Applicable Borrower and shall obligate the Applicable Borrower to borrow the Swingline Loan from the Applicable Swingline Lender on the proposed Drawdown Date thereof. The Administrative Agent will promptly advise the Applicable Swingline Lender of any such notice received from any Borrower. Upon satisfaction of the applicable conditions set forth in this Credit Agreement, on the proposed Drawdown Date the Applicable Swingline Lender shall make the Swingline Loan available to the Applicable Borrower no later than 3:00 p.m. (Eastern time), in respect of the U.S. Borrower or Canadian Borrower, or 3:00 p.m. (London time), in respect of the European Borrower, or 1:00 p.m. (Sydney time), in respect of the Australian Borrower, on the proposed Drawdown Date by crediting the amount of the Swingline Loan to the general deposit account of the Applicable Borrower maintained with the Applicable Swingline Lender or such other deposit account as indicated by the Applicable Borrower in the Swingline Loan Request.

2.7.3. Borrowings to Repay Swingline Loans . Each Borrower absolutely, irrevocably and unconditionally promises to pay in full the outstanding principal balance of all applicable Swingline Loans advanced to it on the earlier to occur of

 

38

(i)(A) in the case of the U.S. Borrower, the date ten (10) Business Days after such Loan is made and (B) in the case of each other Borrower, the date ninety (90) Business Days after such Loan is made and (ii) the Swingline Expiry Date. Each Borrower may prepay the Swingline Loans at any time without penalty or premium. In addition, in the event the outstanding principal balance of any Swingline Loan remains unpaid when due, the Applicable Swingline Lender may, on any Business Day, in its sole discretion, demand repayment of the Swingline Loans by the U.S. Borrower pursuant to its obligations under the Guaranty, and the Administrative Agent shall give notice to the Domestic Lenders that the outstanding Swingline Loans shall be funded with a borrowing of Domestic Revolving Loans, in which case each of the Domestic Lenders shall make Domestic Revolving Loans constituting Base Rate Loans to the U.S. Borrower, on the next succeeding Business Day following such notice, in an amount equal to the Dollar Equivalent of such Lender’s Commitment Percentage of the aggregate amount of all Swingline Loans outstanding to the Applicable Borrower. The proceeds thereof shall be applied directly to the Applicable Swingline Lender to repay such Swingline Lender for such outstanding Swingline Loans. Each Domestic Lender hereby absolutely, unconditionally and irrevocably agrees to make such Domestic Revolving Loans upon one Business Day’s notice as set forth above, notwithstanding (a) that the amount of such Domestic Revolving Loan may not comply with the applicable minimums otherwise required hereunder, (b) the failure of any Borrower to meet the conditions set forth in §§12 or 13 hereof, (c) the occurrence or continuance of a Default or an Event of Default hereunder, (d) the date of such Domestic Revolving Loan, and (e) the amount of, or termination of, the Aggregate Domestic Revolving Loan Commitments at such time. In the event that it is impracticable for such Domestic Revolving Loan to be made for any reason on the date otherwise required above (including as a result of the commencement of a proceeding under the federal Bankruptcy Code in respect of any of the Borrowers or any of the Restricted Subsidiaries), then each Domestic Lender hereby agrees that it shall forthwith purchase (as of the date such Domestic Revolving Loan would have been made, but adjusted for any payments received from the Applicable Borrower on or after such date and prior to such purchase) from the Applicable Swingline Lender, and the Applicable Swingline Lender shall sell to each Domestic Lender, such participations in the Swingline Loans (including all accrued and unpaid interest thereon) outstanding as shall be necessary to cause the Domestic Lenders to share in such Swingline Loans pro rata based on their respective Commitment Percentages (without regard to any termination of the Total Commitment hereunder) by making available to the Applicable Swingline Lender an amount equal to such Lender’s participation in the Swingline Loans; provided that (x) all interest payable on the Swingline Loans shall be for the account of the Applicable Swingline Lender as a funding and administrative fee until the date as of which the respective participation is purchased, and (y) at the time any purchase of such participation is actually made, the purchasing Lender shall be required to pay the Applicable Swingline Lender interest on the principal amount of the participation so purchased for each day from and including the date such Domestic Revolving Loan would otherwise have been made until the date of payment for such participation at the rate of interest in effect applicable to Base Rate Loans during such period.

 

39

2.7.4. Evidence of Swingline Loan Obligations . Each Swingline Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Applicable Borrower to such Swingline Lender resulting from each Swingline Loan made by such Swingline Lender, including the amounts of principal and interest payable and paid to such Swingline Lender from time to time hereunder. The outstanding amount of the Swingline Loans set forth on such accounts shall be prima facie evidence of the principal amount thereof owing and unpaid to the Applicable Swingline Lender, but the failure to record, or any error in so recording, any such amount on such accounts shall not limit or otherwise affect the actual amount of the obligations of the Applicable Borrower hereunder to make payments of principal of or interest on the Swingline Loans when due.

2.7.5. Interest on Swingline Loans .

(a) Except as otherwise provided in §6.10, each Domestic Swingline Loan shall bear interest from the Drawdown Date thereof until repaid in full or converted into a Domestic Revolving Loan at the rate per annum equal to the Base Rate plus the Applicable Margin as in effect from time to time. Domestic Swingline Loans may not be converted into LIBOR Rate Loans. The U.S. Borrower promises to pay interest on the outstanding amount of its Domestic Swingline Loans on each Interest Payment Date with respect thereto.

(b) Except as otherwise provided in §6.10, each European Swingline Loan shall bear interest from the Drawdown Date thereof until repaid in full or converted into a European Loan at the rate per annum equal to the Euro Base Rate plus the Applicable Margin as in effect from time to time. European Swingline Loans may not be converted into LIBOR Rate Loans. The European Borrower promises to pay interest on the outstanding amount of its European Swingline Loans on each Interest Payment Date with respect thereto.

(c) Except as otherwise provided in §6.10, each Canadian Swingline Loan shall bear interest from the Drawdown Date thereof until repaid in full or converted into a Canadian Revolving Loan at the rate per annum equal to the Canadian Base Rate plus the Applicable Margin as in effect from time to time. Canadian Swingline Loans may not be converted into LIBOR Rate Loans. The Canadian Borrower promises to pay interest on the outstanding amount of its Canadian Swingline Loans on each Interest Payment Date with respect thereto.

(d) Except as otherwise provided in §6.10, each Australian Swingline Loan shall bear interest from the Drawdown Date thereof until repaid in full or converted into an Australian Loan at the rate per annum equal to the Australian Base Rate plus the

 

40

Applicable Margin as in effect from time to time. Australian Swingline Loans may not be converted into LIBOR Rate Loans. The Australian Borrower promises to pay interest on the outstanding amount of its Australian Swingline Loans on each Interest Payment Date with respect thereto.

2.8. Borrowers’ Conversion Options; Continuation of Loans .

2.8.1. Conversion to Different Type of Domestic Revolving Loan or Canadian Revolving Loan . Any Borrower may elect from time to time to convert any outstanding Domestic Revolving Loan or Canadian Revolving Loan, as the case may be, to a Domestic Revolving Loan or Canadian Revolving Loan as the case may be, of another Type, provided that (a) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate Loan or a Canadian Base Rate Loan, the Applicable Borrower shall give the Administrative Agent at least one (1) Business Day prior written notice of such election; (b) with respect to any such conversion of a Base Rate Loan or a Canadian Base Rate Loan to a LIBOR Rate Loan, the Applicable Borrower shall give the Administrative Agent at least three (3) Business Days prior written notice of such election; (c) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate Loan or a Canadian Base Rate Loan, such conversion shall only be made on the last day of the Interest Period with respect thereto; (d) no Base Rate Loan or Canadian Base Rate Loan may be converted into a LIBOR Rate Loan when a Payment Event of Default or an Event of Default under §14.1 (g) or (h) has occurred and is continuing; and (e) no more than ten (10) LIBOR Rate Loans having different Interest Periods may be outstanding at any time. On the date on which such conversion is being made, each Lender shall take such action as is necessary to transfer its Commitment Percentage of such Loans to its Domestic Lending Office or its LIBOR Lending Office, as the case may be. All or any part of outstanding Domestic Revolving Loans or Canadian Revolving Loans of any Type may be converted into a Domestic Revolving Loan or Canadian Revolving Loan of another Type as provided herein, provided that any partial conversion shall be in an aggregate principal amount of $500,000 or a whole multiple thereof. Each Conversion Request relating to the conversion of a Domestic Revolving Loan or Canadian Revolving Loan to a LIBOR Rate Loan shall be irrevocable by the Applicable Borrower.

2.8.2. Continuation of Type of Loan . Any Domestic Revolving Loan, European Loan, Canadian Revolving Loan or Australian Loan of any Type may be continued by the Applicable Borrower as a Domestic Revolving Loan, European Loan, Canadian Revolving Loan or Australian Loan, respectively, of the same Type upon the expiration of an Interest Period with respect thereto by compliance by such Borrower with the notice provisions contained in §2.8.1; provided that no LIBOR Rate Loan may be continued as such when a Payment Event of Default or an Event of Default under §14.1 (g) or (h) has occurred and is continuing, but shall be automatically converted (a) in the case of the U.S. Borrower, to a Base Rate Loan, (b) in the case of the Canadian Borrower, to a Canadian Base Rate Loan, or (c) in the case of the European Borrower or the Australian Borrower to a one month LIBOR Rate Loan, in each case on the last day of the first Interest Period relating thereto ending during the continuance of such an Event of Default of which officers of the

 

41

Administrative Agent active upon the Applicable Borrower’s account have actual knowledge. In the event that the Applicable Borrower fails to provide any such notice with respect to the continuation of any LIBOR Rate Loan as such, then such LIBOR Rate Loan shall be automatically continued with an Interest Period of one month on the last day of the first Interest Period relating thereto. The Applicable Agent shall notify the Applicable Lenders promptly when any such automatic continuation contemplated by this §2.8.2 is scheduled to occur.

2.8.3. LIBOR Rate Loans .

(a) Any conversion by any Borrower to or from LIBOR Rate Loans shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of all LIBOR Rate Loans having the same Interest Period shall not be less than $500,000 or a whole multiple of $500,000.

(b) If any Borrower wishes to request LIBOR Rate Loans having an Interest Period other than 1, 2, 3 or 6 months in duration as provided in the definition of “Interest Period”, the applicable notice must be received by the Applicable Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such borrowing, conversion or continuation of LIBOR Rate Loans denominated in Dollars, Canadian Dollars, Euro or Australian Dollars, as applicable, whereupon the Applicable Agent shall give prompt notice to the Applicable Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m., three (3) Business Days before the requested date of such borrowing, conversion or continuation of LIBOR Rate Loans denominated in Dollars, Canadian Dollars, Euro or Australian Dollars, as applicable, the Applicable Agent shall notify the Applicable Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Applicable Lenders.

2.9. Funds for Loans .

2.9.1. Funding Procedures . Not later than 2:00 p.m. (Eastern time), with respect to the U.S. Borrower or the Canadian Borrower, or 1:00 p.m. (London time), with respect to the European Borrower, or 1:00 p.m. (Sydney time), with respect to the Australian Borrower, on the proposed Drawdown Date of any Domestic Revolving Loan, European Loan, Canadian Revolving Loan or Australian Loan, each of the Applicable Lenders will make available to the Applicable Agent at the Applicable Agent’s Office, in immediately available funds, the amount of such Lender’s Commitment Percentage of such Loans made or to be made on such date. Upon receipt from each Applicable Lender of such amount, and upon receipt of the documents required by §§12 (with respect to such Loans to be made on the Closing Date) and 13 hereof and the satisfaction of the other conditions set forth herein, to the extent applicable, the Applicable Agent will make available to the Applicable Borrower the aggregate amount of such Loans made available to the Applicable Agent by the Applicable Lenders. The failure or refusal of any Applicable Lender to make available to the Applicable Agent at the aforesaid time

 

42

and place on any Drawdown Date the amount of its Commitment Percentage of the requested Loans shall not relieve any other Applicable Lender from its several obligation hereunder to make available to the Applicable Agent the amount of such other Applicable Lender’s Commitment Percentage of any requested Loans. In the event that the Applicable Agent becomes aware of any Applicable Lender’s failure to make available the amount of its Commitment Percentage of any requested Loan, the Applicable Agent shall notify the Applicable Borrower of the identity of such Lender and the amount such Lender has not made available to the Applicable Agent.

2.9.2. Advances by Applicable Agent . The Applicable Agent may, unless notified to the contrary by any Applicable Lender prior to a Drawdown Date of a Domestic Revolving Loan, European Loan, Canadian Revolving Loan or Australian Loan assume that such Lender has made available to the Applicable Agent on such Drawdown Date the amount of such Lender’s Commitment Percentage of the Loans to be made on such Drawdown Date, and the Applicable Agent may (but it shall not be required to), in reliance upon such assumption, make available to the Applicable Borrower a corresponding amount. If any Applicable Lender makes available to the Applicable Agent such amount on a date after such Drawdown Date, such Applicable Lender shall pay to the Applicable Agent on demand an amount equal to the product of (a) the average computed for the period referred to in clause (c) below, of the Federal Funds Rate, times (b) the amount of such Lender’s Commitment Percentage of such Loans, times (c) a fraction, the numerator of which is the number of days that shall have elapsed from and including such Drawdown Date to the date on which the amount of such Applicable Lender’s Commitment Percentage of such Loans shall become immediately available to the Applicable Agent, and the denominator of which is 360. A statement of the Applicable Agent submitted to such Applicable Lender with respect to any amounts owing under this paragraph shall be prima facie evidence of the amount due and owing to the Applicable Agent by such Lender. If the amount of such Lender’s Commitment Percentage of such Loans is not made available to the Applicable Agent by such Lender within three (3) Business Days following such Drawdown Date, the Applicable Agent shall be entitled to recover such amount from the Applicable Borrower on demand, with interest thereon at the rate per annum applicable to the applicable Loans made on such Drawdown Date.

Percentage of the Loans to be made on such Drawdown Date, and the Applicable Agent may (but it shall not be required to), in reliance upon such assumption, make available to the Applicable Borrower a corresponding amount. If any Applicable Lender makes available to the Applicable Agent such amount on a date after such Drawdown Date, such Applicable Lender shall pay to the Applicable Agent on demand an amount equal to the product of (a) the average computed for the period referred to in clause (c) below, of the Federal Funds Rate, times (b) the amount of such Lender’s Commitment Percentage of such Loans, times (c) a fraction, the numerator of which is the number of days that shall have elapsed from and including such Drawdown Date to the date on which the amount of such Applicable Lender’s Commitment Percentage of such Loans shall become immediately available to the Applicable Agent, and the denominator of which is 360. A statement of the Applicable Agent submitted to such Applicable Lender with respect to any amounts owing under this paragraph shall be prima facie evidence of the amount due and owing to the Applicable Agent by such Lender. If the amount of such Lender’s Commitment Percentage of such Loans is not made available to the Applicable Agent by such Lender within three (3) Business Days following such Drawdown Date, the Applicable Agent shall be entitled to recover such amount from the Applicable Borrower on demand, with interest thereon at the rate per annum applicable to the applicable Loans made on such Drawdown Date.

2.9.3. Discretion of Lenders as to Manner of Funding . Notwithstanding any provision of this Credit Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of such Lender’s Loans in any manner such Lender deems to be appropriate (including funding such Loans through a foreign branch or Affiliate of such Lender, so long as such funding does not adversely affect the Borrowers).

2.10. Reallocation of Commitments .

(a) Subject to the conditions set forth in this §2.10, the Borrowers shall have the right once during each fiscal quarter upon five (5) Business Days prior written notice to the Administrative Agent to (i) increase the Aggregate Domestic Revolving Loan Commitments by reducing and reallocating by an equivalent amount all or a portion of the Aggregate Canadian Revolving Loan Commitments and/or the Aggregate European Commitments and/or the Aggregate Australian Commitments to the Aggregate Domestic Revolving Loan Commitments, (ii) increase the Aggregate Canadian Revolving

 

43

Loan Commitments by reducing and reallocating by an equivalent amount a portion of the Aggregate Domestic Revolving Loan Commitments to the Aggregate Canadian Revolving Loan Commitments, (iii) increase the Aggregate European Commitments by reducing and reallocating by an equivalent amount a portion of the Aggregate Domestic Revolving Loan Commitments to the Aggregate European Commitments and/or (iv) increase the Aggregate Australian Commitments by reducing or reallocating by an equivalent amount a portion of the Aggregate Domestic Revolving Loan Commitments to the Aggregate Australian Commitments; provided that any such increase shall not be an amount less than $5,000,000.

(b) Any Reallocation pursuant to this §2.10 shall be subject to the following conditions:

(i) Each Reallocation of applicable Commitment amounts shall be made only between the offices or Affiliates of Applicable Lenders such that the sum of all the applicable Commitments of each Applicable Lender and its Affiliates shall not be increased or decreased as a result of any Reallocation. Each Applicable Lender, on behalf of itself and its Affiliates, hereby undertakes to comply with the lending obligations arising pursuant to any Reallocation of Commitments.

(ii) Each increase in (A) the Aggregate Domestic Revolving Loan Commitments shall be offset by a corresponding and equivalent reduction in one or more of the Aggregate Canadian Revolving Loan Commitments, Aggregate European Commitments and Aggregate Australian Commitments, and (B) the Aggregate Canadian Revolving Loan Commitments, Aggregate European Commitments or Aggregate Australian Commitments, as the case may be, shall be offset by a corresponding and equivalent reduction in the Aggregate Domestic Revolving Loan Commitments, such that the Total Commitment in effect immediately before a Reallocation shall be equal to the Total Commitment immediately after, and after giving effect to, such Reallocation.

(iii) No Reallocation shall increase (A) the Aggregate Canadian Revolving Loan Commitments in excess of $20,000,000, (B) the Aggregate European Commitments in excess of $25,000,000 or (C) the Aggregate Australian Commitments in excess of $100,000,000 (as any of the same may be increased pursuant to §27.2).

(iv) No Reallocation shall result in (A) any Domestic Lender having a positive Canadian Revolving Loan Commitment, European Commitment or Australian Commitment if such Domestic Lender, or its Affiliate, did not have such positive Canadian Revolving Loan Commitment, European Commitment or Australian Commitment on the Closing Date or acquire such applicable Commitment by assignment after the Closing Date, or (B) any European Lender having a positive Canadian Revolving Loan Commitment or Australian Commitment if such European Lender, or its Affiliate, did not have such positive Canadian Revolving Loan Commitment or Australian Commitment on the Closing Date or acquire such applicable Commitment by assignment after the Closing Date, or

 

44

(C) any Canadian Lender having a positive European Commitment or Australian Commitment if such Canadian Lender, or its Affiliate, did not have such positive European Commitment or Australian Commitment on the Closing Date or acquire such applicable Commitment by assignment after the Closing Date, or (D) any Australian Lender having a positive European Commitment or Canadian Revolving Loan Commitment if such Australian Lender, or its Affiliate, did not have such positive European Commitment or Canadian Revolving Loan Commitment on the Closing Date or acquire such applicable Commitments by assignment after the Closing Date.

(v) Subject to §2.10(b)(iv), each Reallocation shall be made pro rata among the Lenders whose Applicable Commitments are being reallocated from one Applicable Commitment to another, but shall not cause the Applicable Commitments of any other Lenders to change (but will result in a change in Commitment Percentages).

(vi) Subject to §§6.6 and 6.7, in no event shall (A) the Aggregate Domestic Revolving Loan Commitments be reduced to an amount less than the greater of (x) $130,000,000 and (y) the Total Domestic Revolver Exposure; (B) the Aggregate Canadian Revolving Loan Commitments be reduced to an amount less than the Total Canadian Revolver Exposure; (C) the Aggregate European Commitments be reduced to an amount less than the Total European Exposure; or (D) the Aggregate Australian Commitments be reduced to an amount less than the Total Australian Exposure.

(c) The Applicable Agent shall (i) notify each of the Lenders promptly after receiving any notice of a Reallocation delivered by the Applicable Borrower pursuant to this §2.10 and (ii) promptly upon the effectiveness of any such Reallocation, distribute to each Lenders an updated Schedule II hereto, reflecting the changes in the respective Applicable Commitments of the Lenders.

2.11. Sharing of Payments by Lenders . If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in Letter of Credit Obligations or in Swingline Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent and any other Applicable Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in Letter of Credit Obligations and applicable Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:

 

45

(a) if any such participations or subparticipations are purchased and all or any portion of the payment g