Exhibit 4(c)
SECOND AMENDMENT
Dated as of December 17, 1996
THIS SECOND AMENDMENT, dated as of December 17, 1996 (this "Second
Amendment"), amends the Credit Agreement, dated as of November 21, 1994 as
previously amended by the First Amendment dated October 23, 1995 (the "Credit
Agreement"), among WISCONSIN CENTRAL TRANSPORTATION CORPORATION (the "Company"),
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent, BANK OF
AMERICA ILLINOIS, as Issuing Bank, and the other financial institutions party
thereto. Capitalized terms used in this Second Amendment and not otherwise
defined herein have the meanings ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into the Credit Agreement
which provides for the Banks to make extensions of credit to the Company from
time to time; and
WHEREAS, the parties hereto desire to amend the Credit
Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Effective on (and subject to the occurrence of)
the Second Amendment Effective Date (as hereinafter defined), the Credit
Agreement shall be amended as follows:
1.1 Applicable Fee Percentage. The table set forth in the
definition of "Applicable Fee Percentage" in Section 1.1 of the
Credit Agreement is amended to read as follows:
Applicable Fee Applicable Fee Applicable Fee
Percentage for Percentage for Percentage for
Pricing Level Commitment Fees Facility Fees L/C Fees
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Level I 0.0500% 0.0750% 0.1875%
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Level II 0.0500% 0.0875% 0.2250%
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Level III 0.0575% 0.1250% 0.3000%
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Level IV 0.0900% 0.1750% 0.4500%.
1.2 Applicable Margin. The table set forth in the
definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement is amended to read as follows:
Applicable Margin Applicable Margin
for Offshore for
Pricing Level Rate Loans CD Rate Loans
--------------------------------------------------------------------
Level I 0.2000% 0.3250%
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Level II 0.2550% 0.3800%
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Level III 0.3000% 0.4250%
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Level IV 0.4550% 0.5800%.
1.3 Interest Period. Clause (iii) of the proviso to the
definition of "Interest Period" in Section 1.1 of the Credit
Agreement is amended by deleting "October 31, 1999" and inserting
in its place "October 31, 2000".
1.4 Investment/Restricted Payment Cap. The definition of
"Investment/Restricted Payment Cap" in Section 1.1 of the Credit
Agreement is deleted.
1.5 Majority Banks. The definition of "Majority Banks" in
Section 1.1 of the Credit Agreement is amended to read as
follows:
"Majority Banks" means, at all times, (a) at any time prior to
the Revolving Termination Date Banks then holding at least 51% of the
Commitments, or after the Revolving Termination Date if no Loans are
outstanding, Banks holding at least 51% of the Commitments on the
Revolving Termination Date, and (b) otherwise, Banks then holding at
least 51% of the Loans.
1.6 Permitted Receivables Securitization. Section 1.1 of
the Credit Agreement is amended by inserting the following
definition of Permitted Receivables Securitization in proper
alphabetical order:
"Permitted Receivables Securitization" means any trade
receivables securitization provided (i) no Default or Event of Default
exists at the time of any disposition or creation of any Lien pursuant
to any such transaction, or would result therefrom, (ii) the amount by
which the outstanding balance of the pool of receivables transferred or
on which a Lien has been granted exceeds $70,000,000 at any time would
be permitted to be incurred as Funded Debt without breaching
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Section 8.14 and at any time any such excess exists the amount of such
excess is treated as Funded Debt for purposes of calculating the
Leverage Ratio, and (iii) any excess servicing spread or cash
collateral associated with such trade receivables securitization is
deducted from the net worth of the Company and the Restricted
Subsidiaries for the purpose of calculating all financial tests under
this Agreement.
1.7 Revolving Termination Date. Clause (a) of the
definition of "Revolving Termination Date" is amended by deleting
"October 31, 1999" and inserting in its place "October 31, 2000".
1.8 Accounting Principles. Subsection 1.3(a) of the Credit
Agreement is amended to read as follows:
(a) Unless the context otherwise clearly requires and except
as set forth in the definition of Permitted Receivables Securitization,
all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be
made, in accordance with GAAP consistently applied; provided that if
any change in GAAP from that applied in the preparation of the
financial statements referred to in Section 6.11 is occasioned by the
promulgation of rules, regulations, pronouncements and opinions by or
required by the Accounting Principle Board, Financial Accounting
Standards Board or the American Institute of Certified Public
Accountants, the initial announcement of which is made after the
Closing Date, and results in a change in the method of regulation or
calculation of the covenants set forth in Section 8.13, 8.14 or 8.15,
the parties hereto agree to enter into good faith negotiations in order
to amend such provisions so as to reflect such changes with the desired
result that the criteria for evaluating the Company's financial
condition shall be the same after such changes as if such changes had
not been made; and provided, further, that until such time as the
parties hereto agree upon such amendments, such financial covenants,
standards and terms shall be construed and calculated as though such
change had not taken place.
1.9 Revised Commitments. Schedule 2.1 of the Credit
Agreement is amended to read as set forth in Exhibit A hereto.
1.10 Interest Periods for Committed Loans. Section 2.3(d)
of the Credit Agreement is amended to read as follows:
(d) After giving effect to any Committed Borrowing, there may
not be more than nine different Interest Periods in effect in respect
of all Committed Loans and, if the
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Agent is then acting as the Bid Agent, Bid Loans together then
outstanding.
1.11 Interest Periods for Bid Loans. Clause (b) of the
second proviso to Section 2.5 of the Credit Agreement shall be
amended to read as follows:
(b) at any time the Agent is acting as the Bid Agent, the
number of Interest Periods for Bid Loans then outstanding plus the
number of Interest Periods for Committed Loans together then
outstanding exceeds nine.
1.12 Senior Debt Rating. Article VII of the Credit
Agreement is amended by inserting the following Section 7.10
following Section 7.9 thereof:
Section 7.10 Maintenance of Senior Debt Rating. On
an annual basis and within 45 days after receipt, the
Company will provide evidence of its current senior debt
rating by Xxxxx'x or S&P as documented by said rating agency
to the Agent and all Banks; it being agreed that any rating
of a rating agency for which the Company does not so provide
such evidence, and for which the Agent and the Banks do not
otherwise have evidence of a current rating of the Company's
senior debt, shall not be considered in determining the
applicable Pricing Level (in which case the Pricing Level
shall be determined based on the rating of the rating agency
for which the Company did provide such evidence or for which
the Agent and the Banks do have such evidence and/or the
Leverage Ratio, as provided in this Agreement) and that
there shall be no other consequence of the failure of the
Company to comply with the requirements of this sentence.
Further, the Company shall promptly notify the Agent of any
change in or withdrawal of the Company's senior debt rating
by Xxxxx'x or S&P when the Company becomes aware of any such
change or withdrawal.
1.13 Liens on Acquired Property. Subsection 8.1(j) of the
Credit Agreement is amended to read as follows:
(j) security interests on any property acquired or held by the
Company or any Restricted Subsidiary in the ordinary course of
business, securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such property;
provided that (i) any such Lien attaches to such property concurrently
with or within 180 days after the acquisition thereof, (ii) such Lien
attaches solely to the property so acquired in such transaction, and
(iii) the principal amount of the debt secured thereby does not exceed
100% of the cost of such property;
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1.14 Liens on Receivables. Subsection 8.1(v) of the Credit Agreement is
amended by deleting "and" at the end thereof. Subsection 8.1(w) of the Credit
Agreement is deleted and the following subsection 8.1(w) and subsection 8.1(y)
are inserted in its place:
(w) Liens on trade receivables that are the
subject of a Permitted Receivables Securitization
incurred in connection with such Permitted Receivables
Securitization; and
(y) other Liens securing obligations not in
excess of $1,000,000 in principal amount at any one
time outstanding in the aggregate.
1.15 Disposition of Assets. Subsection 8.2(d) of the Credit Agreement
is amended by deleting "and" at the end thereof. Subsection 8.2(e) of the Credit
Agreement is deleted and the following subsection 8.2(e) and subsection 8.2(f)
are inserted in its place:
(e) dispositions of trade receivables pursuant to
Permitted Receivables Securitizations; and
(f) dispositions of real and personal property not otherwise
permitted hereunder (other than any trade receivables securitization or
other dispositions of trade receivables, the permissibility of which
shall be considered under subsection 8.2(e)) which are made for fair
market value; provided that (i) at the time of any disposition, a
Default or an Event of Default shall not exist or result from such
disposition, (ii) the aggregate sales price from such disposition shall
be paid in cash, and (iii) the aggregate book value of all assets
disposed of by the Company and its Restricted Subsidiaries pursuant to
such dispositions since the Closing Date may not exceed 30% of Net
Tangible Assets owned by the Company and its Restricted Subsidiaries as
of the end of the most recently ended fiscal quarter; and provided,
further that to the extent the net proceeds from any such disposition
are reinvested within 180 days of the disposition giving rise thereto
in similar assets of equivalent value acquired by the Company or any
Restricted Subsidiary the value of such disposed of assets shall not be
included in the calculation contained in clause (iii) next above.
1.16 Limitation on Indebtedness. Subsection 8.5(c) of the Credit
Agreement is amended by deleting "the Insurance Company Debt" and inserting
"[Reserved]" in its place. Subsection 8.5(d) of the Credit Agreement is amended
by deleting "$20,000,000" and inserting "$25,000,000" in its place.
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1.17 Certain Investments. Subsection 8.4(d) of the Credit
Agreement is amended to read as follows:
(d) investments incurred in order to consummate Acquisitions
otherwise permitted herein, provided that (i) such Acquisitions are
undertaken in accordance with all applicable Requirements of Law; and
(ii) the prior, effective consent or approval to such Acquisition of
the board of directors or equivalent governing body of the acquiree is
obtained; and provided, further that the permissibility of investments
to consummate Acquisitions of Unrestricted Subsidiaries shall be
considered under subsection 8.4(f).
1.18 Certain Other Investments. Subsection 8.4(f) and
subsection 8.4(g) of the Credit Agreement and the proviso
appearing after subsection 8.4(g) are deleted and the following
subsection 8.4(f) and proviso are inserted in their place:
(f) investments in or loans to Unrestricted Subsidiaries and
investments in other Persons not specifically permitted by subsection
8.4(a) through subsection 8.4(e) above or subsection 8.4(g) below with
an aggregate Outstanding Amount at any time not exceeding 50% of the
consolidated net worth of the Company and its Restricted Subsidiaries
at the end of the most recently completed fiscal quarter of the Company
(exclusive of any net worth of Unrestricted Subsidiaries). "Outstanding
Amount" for purposes of this subsection 8.4(f) means, with respect to
any investment or loan, the amount of such investment or loan (or with
respect to any Commitment to make an investment or loan, the amount of
such Commitment) as reduced by (x) cash repayments of principal (and
the reduction of unused commitments), in the case of loans, and (y)
cash dividends or other returns of capital or divestures paid in cash,
in each case net of all taxes payable thereon (and the reductions of
any unused commitments to make investments);
provided that no investment or loan permitted pursuant to subsections
8.4(d), (e) and (f) may be made if before or after giving effect to any
such investment or loan a Default or Event of Default shall exist; and
1.19 Conforming Changes to Investment Covenant. Subsection 8.4(e) of
the Credit Agreement is amended by deleting the reference to "subsection 8.4(g)"
and inserting in its place "subsection 8.4(f)". In addition, subsection 8.4(h)
of the Credit Agreement is amended by deleting "(h)" at the beginning thereof
and inserting "(g)" in its place.
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1.20 Contingent Obligations. Subsection 8.9(e) of the
Credit Agreement is amended to read as follows:
(e) additional Contingent Obligations not otherwise permitted
hereunder; provided that, at the time of creation, incurrence or
assumption of such Contingent Obligation, the amount of such Contingent
Obligation (determined in a manner consistent with the last sentence of
the definition thereof) of the Company or the Restricted Subsidiary in
question would be permitted to be treated, without a Default or an
Event of Default occurring or continuing to exist as a result thereof,
as Funded Debt permitted to be incurred by the Company without
breaching Section 8.14, and thereafter such amount, so long as the
related Contingent Obligation exists, shall be treated as Funded Debt
for the purpose of calculating the Leverage Ratio; and provided,
further, Contingent Obligations of Restricted Subsidiaries permitted
pursuant to this subsection 8.9(e) shall (x) only support Indebtedness
of the Company or its Subsidiaries, (y) not, in the case of Contingent
Obligations supporting Indebtedness of the Company, at any time exceed
$100,000,000 in the aggregate for all such Contingent Obligations and
(z) not, in the case of Contingent Obligations supporting Indebtedness
of the Subsidiaries of the Company, at any time exceed $20,000,000 in
the aggregate for all such Contingent Obligations (in the case of
clauses (x) and (y), determined in a manner consistent with the last
sentence of the definition of Contingent Obligation).
1.21 Restricted Payments. Paragraph (iii) of subsection
8.10(b) of the Credit Agreement is amended to read as follows:
(iii) declare or pay cash dividends to its stockholders and purchase,
redeem or otherwise acquire shares of its capital stock or warrants,
rights or options to acquire any such shares for cash, provided, that
(A) immediately after giving effect to such proposed action, no Default
or Event of Default would exist, (B) Net Income for the fiscal quarter
prior to the fiscal quarter in which such payment is made was greater
than zero, and (C) the aggregate of all payments with respect to any of
the foregoing since the First Amendment Effective Date would not exceed
50% of Net Income for the period beginning January 1, 1995 and ending
on the last day of the fiscal quarter prior to the fiscal quarter in
which such payment is made.
1.22 Sault Ste. Xxxxx Bridge Company. The status of Sault
Ste. Xxxxx Bridge Company ("Sault Ste. Xxxxx") is changed from an
Unrestricted Subsidiary to a Restricted Subsidiary and
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Schedule 6.16 to the Credit Agreement is amended to reflect such change.
SECTION 2 ADDITION OF BANK; ASSIGNMENTS.
2.1 New Bank. The Chase Manhattan Bank (the "New Bank") hereby:
confirms that it has received a copy of the Credit Agreement, the exhibits
thereto and the First Amendment thereto; and acknowledges and agrees that
neither the Agent nor the Issuing Bank has made any representation or warranty
about the creditworthiness of the Company or any other party to the Amended
Credit Agreement (as defined below) or any other Loan Document or with respect
to the legality, validity, sufficiency or enforceability of the Amended Credit
Agreement or any other Loan Document or the value of any security therefor. Upon
the effectiveness of this Second Amendment, the New Bank shall be a party to the
Amended Credit Agreement and have all the rights and obligations of a "Bank"
thereunder and agrees to be bound by the terms and conditions thereof.
2.2 Assignments of Committed Loans on Second Amendment
Effective Date. By its execution of this Agreement each of the
Banks agrees, and the Company and the Agent acknowledge, that:
(a) effective as of the Second Amendment Effective Date, each
of The Northern Trust Company, Firstar Bank Milwaukee, N.A. and Xxxxxx
Trust and Savings Bank (each, an "Assignor Bank") hereby (i) sells and
assigns to The First National Bank of Boston, The Bank of New York, The
Bank of Nova Scotia and The Chase Manhattan Bank (each, an "Assignee
Bank"), without recourse or warranty (except as set forth in clause (d)
of this Section 2.2), (A) the principal amount of such Assignor Bank's
outstanding Committed Loans necessary so that after giving effect to
such assignments the retained portion of each Committed Loan of such
Assignor Bank is outstanding in accordance with such Bank's Pro Rata
Share (determined giving effect to this Second Amendment) and (B) the
percentage of such Assignor Bank's participations in all outstanding
Letters of Credit necessary so that after giving effect to such
assignments each participation of such Assignor Bank in each such
Letter of Credit are outstanding in accordance with such Bank's Pro
Rata Share (determined giving effect to this Second Amendment)
(provided, that each Assignor Bank retains the right to receive unpaid
interest accrued on the Committed Loans and to but excluding the Second
Amendment Effective Date and L/C Fees attributable to the period prior
to the Second Amendment Effective Date) (such principal amount of such
Committed Loans together with such percentages of such participations,
is herein called the "Assigned Interest");
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(b) effective as of the Second Amendment Effective Date, each
Assignee Bank hereby purchases the Assigned Interests and assumes the
obligations with respect to the participations in the Letters of Credit
included therein in an amount so that after giving effect to such
assignments and assumptions each Assignee Bank owns Committed Loans for
each Committed Borrowing and participations in Letters of Credit in
accordance with such Bank's Pro Rata Share (determined giving effect to
this Second Amendment);
(c) each Assignee Bank will pay to the Agent (for the account
of the Assignor Banks), not later than 2 P.M., Chicago time, on the
Second Amendment Effective Date, an amount equal to the principal
amount of the Committed Loans being purchased by such Assignee Bank
pursuant to Section 2.2(a) and after the receipt of such funds the
Agent shall pay to each Assignor Bank an amount equal to the principal
amount of the Committed Loans being sold by such Assignor Bank pursuant
to Section 2.2(b);
(d) as of the Second Amendment Effective Date, prior to giving
effect to any sale, assignment and delegation under this Section 2.2 as
of such date, each Assignor Bank represents and warrants, as to the
assignment effected by such Assignor Bank, that as of the Second
Amendment Effective Date such Assignor Bank is the legal and beneficial
owner of the Assigned Interests being assigned by it hereunder, that it
has the right and power to assign such Assigned Interests and that such
Assigned Interests are free and clear of any adverse claim or
encumbrance created or permitted by such Assignor Bank;
(e) from and after the Second Amendment Effective Date, the
Agent shall make all payments under this Agreement in respect of the
Assigned Interest, other than retained rights to interest payments and
fees as set forth in clause (a) above, to the Assignee Banks; and
(f) the Interest Period and interest rate for each Offshore
Rate a portion of which is assigned pursuant to this Section 2.2 shall
be unaffected by such assignment and no Bank shall be entitled to any
claim under Section 4.4(d) of the Credit Agreement as a result of such
assignment.
2.3 Payment of Fees. On the Second Amendment Effective Date, the
Company shall pay to the Agent for the account of each Bank (other than the New
Bank):
(a) the Commitment Fee accrued up to the Second
Amendment Effective Date calculated as provided in the Credit
Agreement except that for the purposes of such payment, the
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Commitment Fee shall be based upon the average daily unused portion of the
combined Commitments for the period commencing on the first day of the current
calendar quarter to but excluding the Second Amendment Effective Date (it being
agreed that the payment of the Commitment Fee due at the end of the current
calendar quarter shall be the Commitment Fee accrued during, and shall be based
upon the average daily unused portion of the combined Commitments for, the
period commencing on the Second Amendment Effective Date through the end of the
current calendar quarter); and
(b) the Facility Fee accrued up to the Second Amendment
Effective Date (it being agreed that the payment of the Facility Fee due at the
end of the current calendar quarter shall be the Facility Fee accrued during the
period commencing on the Second Amendment Effective Date through the end of the
current calendar quarter).
SECTION 3 REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Banks as follows:
3.1 Credit Agreement Warranties. Each representation and warranty of
the Company set forth in Article VI of the Credit Agreement, as amended by this
Second Amendment (as so amended, the "Amended Credit Agreement"), is true and
correct as of the date of the execution and delivery of this Second Amendment by
the Company, with the same effect as if made on such date.
3.2 Authorization; No Conflict. The (a) execution and delivery by (i)
the Company of this Second Amendment, (ii) Sault Ste. Xxxxx of the Guaranty and
(iii) each Restricted Subsidiary of the Consent of Guarantors (as hereinafter
defined), and (b) performance by (i) the Company of its obligations under the
Amended Credit Agreement, and (ii) each Restricted Subsidiary of the Guaranty,
are within the corporate powers of the Company and each Restricted Subsidiary,
as applicable, have been duly authorized by all necessary corporate action on
the part of the Company and each Restricted Subsidiary, have received all
necessary governmental approval, and do not and will not (x) violate any
provision of law or of any order, decree or judgment which is binding on the
Company or any Restricted Subsidiary, (y) contravene or conflict with, or result
in a breach of, any provision of the Organization Documents of the Company or
any Restricted Subsidiary or of any agreement, indenture, instrument or other
document which is binding on the Company or any Restricted Subsidiary or (z)
result in, or require, the creation or imposition of any Lien on any property of
the Company or any Restricted Subsidiary.
3.3 Validity and Binding Nature. Upon the execution and
delivery hereof by all of the parties hereto, each of this Second
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Amendment and the Amended Credit Agreement will be the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
3.4 Guaranty. After the effectiveness of this Second Amendment, the
Guaranty will continue in full force and effect and will continue to be the
legal, valid and binding obligation of each Restricted Subsidiary, enforceable
against each Restricted Subsidiary in accordance with its terms.
SECTION 4 SECOND AMENDMENT EFFECTIVE DATE. The amendments set forth in
Section 1 hereof shall become effective, as of the day and year first above
written, on such date (the "Second Amendment Effective Date") when all of the
following conditions precedent have been satisfied:
4.1 Documents. The Agent shall have received all of the following, each
in form and substance satisfactory to the Agent and the Banks:
(a) counterparts of this Second Amendment executed by all
of the parties hereto;
(b) counterparts of the Guaranty executed by Sault Ste.
Xxxxx;
(c) the consent substantially in the form of Exhibit B attached hereto
(the "Consent of Guarantors") executed by each Restricted Subsidiary;
(d) certified copies of resolutions of the Board of Directors of the
Company authorizing or ratifying the execution and delivery of this
Second Amendment and the performance by the Company of its obligations
under the Amended Credit Agreement;
(e) a certificate of the Secretary or an Assistant Secretary of the
Company certifying the names of the officer or officers authorized to
sign this Second Amendment, together with a sample of the true
signature of each such officer;
(f) certified copies of resolutions of the Board of Directors of each
Restricted Subsidiary authorizing or ratifying the execution and
delivery of the Consent of Guarantors (and the Guaranty in the case of
Sault Ste. Xxxxx) and the performance of each Restricted Subsidiary of
its obligations under the Guaranty;
(g) a certificate of the Secretary or Assistant Secretary
of each Restricted Subsidiary certifying the names of the
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officer or officers of such Restricted Subsidiary authorized
to sign the Consent of Guarantors (and the Guaranty in the
case of Sault Ste. Xxxxx);
(h) the opinion of counsel for the Company and Restricted
Subsidiaries in substantially the form of Exhibit C attached
hereto;
(i) a certificate of the Company as to the satisfaction of
the conditions set forth in Sections 4.2 and 4.3 of this
Second Amendment;
(j) evidence of the Company's current S&P rating as
published by S&P in their August 1996 Global Sector Review;
and
(k) such other documents as the Agent or any Bank may reasonably
request in connection with the Company's authorization, execution and
delivery of this Second Amendment.
4.2 No Default. No Event of Default or Default shall
exist.
4.3 Representations and Warranties. The representations and warranties
set forth in Section 3 of this Second Amendment are true and correct on such
date with the same effect as if made on such date.
SECTION 5 MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. The Credit Agreement, as hereby
amended, and each other Loan Document shall remain in full force and effect and
is hereby ratified and confirmed in all respects. After the Second Amendment
Effective Date, all references in the Credit Agreement to "this Agreement", and
all references in any Loan Document to "Credit Agreement", shall refer to the
Amended Credit Agreement unless the context otherwise requires.
5.2 Counterparts. This Second Amendment may be executed in any number
of counterparts and by different parties on separate counterparts, and each such
counterpart shall be deemed to be an original but all such counterparts shall
together constitute one and the same Second Amendment.
5.3 Governing Law. This Second Amendment shall be a
contract made under and governed by the internal laws of the
State of Illinois without regard to principles of conflicts of
law.
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5.4 Successors and Assigns. This Second Amendment shall be binding upon
the parties hereto and their respective successors and assigns, and shall inure
to the benefit of the parties hereto and the respective successors and assigns
of the Banks and the Agent.
5.5 Loan Document. This Second Amendment is a Loan
Document.
[signature pages immediately follow]
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Delivered at Chicago, Illinois, as of the day and year first above
written.
WISCONSIN CENTRAL TRANSPORTATION
CORPORATION
By:/s/ Xxxxxx X. Power, Jr.
Name: Xxxxxx X. Power, Jr.
Title: Executive V.P. - C.F.O.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By:/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
BANK OF AMERICA ILLINOIS, as
Issuing Bank
By:/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank providing Bid Loans
By:/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
BANK OF AMERICA ILLINOIS, as a
Bank
By:/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
THE FIRST NATIONAL BANK OF
BOSTON
By:/s/ Xxxxx X. XxXxxxxxx
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By:/s/ Xxxx X. Xxxxx, Xx.
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
FIRSTAR BANK MILWAUKEE, N.A.
By:/s/ R. Xxxxx Xxxxxxx
Name: R. Xxxxx Xxxxxxx
Title:Commercial Banking Officer
THE NORTHERN TRUST COMPANY
By:/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By:/s/ Xxxxx X. Xxxxxx, Xx.
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President
THE BANK OF NOVA SCOTIA
By:/s/ F.C.H. Xxxxx
Name: F.C.H. Xxxxx
Title:Senior Manager Loan Operations
THE CHASE MANHATTAN BANK
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Credit Executive
Exhibit A to Second Amendment
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
---- ---------- -----
Bank of America Illinois $ 81,250,000 25.0000000%
The First National Bank 50,000,000 15.3846154
of Boston
The Bank of New York 50,000,000 15.3846154
The Northern Trust Company 40,000,000 12.0000000
Firstar Bank Milwaukee, N.A. 25,000,000 7.6923077
Xxxxxx Trust and Savings Bank 40,000,000 12.0000000
The Bank of Nova Scotia 25,000,000 7.0000000
The Chase Manhattan Bank 13,750,000 4.2307692
TOTAL $325,000,000 100%
Exhibit B to Second Amendment
CONSENT OF GUARANTORS
Each of the undersigned has issued a Guaranty, dated as of November 21,
1994 (the "Guaranty"), in favor of Bank of America National Trust and Savings
Association (individually and as Agent), Bank of America Illinois (individually
and as Issuing Bank) and the other Banks which are parties to the Credit
Agreement, dated as of November 21, 1994 (the "Credit Agreement"), among
Wisconsin Central Transportation Corporation, Bank of America National Trust and
Savings Association, as Agent, Bank of America Illinois, as Issuing Bank, and
the Banks party thereto. Each of the undersigned hereby consents to Wisconsin
Central Transportation Corporation's execution and delivery of the Second
Amendment to the Credit Agreement dated as of December 17, 1996. Each of the
undersigned hereby confirms that the Guaranty continues in full force and effect
as a guaranty of the Liabilities (as defined in the Guaranty) after giving
effect to such amendment.
This Consent may be executed in any number of counterparts and by
different parties on separate counterparts.
IN WITNESS WHEREOF, each of the undersigned has caused this Consent to
be executed and delivered as of December 17, 1996.
WISCONSIN CENTRAL LTD.
By:
Name:
Title:
FOX VALLEY & WESTERN LTD.
By:
Name:
Title:
WCL RAILCARS, INC.
By:
Name:
Title:
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SAULT STE. XXXXX BRIDGE COMPANY
By:
Name:
Title:
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Exhibit C to Second Amendment
December 17, 1996
To: Bank of America National
Trust and Savings
Association, as Agent,
Bank of America Illinois,
as Issuing Bank,
and Bank of America
National Trust and Savings
Association, Bank of
America Illinois, The First
National Bank of Boston,
The Bank of New York,
Firstar Bank Milwaukee, N.A.,
The Northern Trust Company,
Xxxxxx Trust and
Savings Bank, The Bank of
Nova Scotia, and The Chase
Manhattan Bank as Banks party
to the Credit Agreement
hereinafter referred to
Re: Credit Agreement, dated as of November 21, 1994, as amended by the
First Amendment dated October 23, 1995 (the "Credit Agreement"), among
Wisconsin Central Transportation Corporation, Bank of America National
Trust and Savings Association, as Agent, Bank of America Illinois, as
Issuing Bank, and the other financial institutions party thereto
Ladies and Gentlemen:
We have acted as counsel to Wisconsin Central Transportation
Corporation, a Delaware corporation (the "Company"), and its Restricted
Subsidiaries in connection with the negotiation, execution and delivery of the
Second Amendment, dated the date hereof (the "Amendment"), to the
above-captioned Credit Agreement. Capitalized terms used in this opinion and not
otherwise defined herein shall have the respective meanings specified therefor
in the Credit Agreement. We are providing this opinion to the Agent and each
Bank at the request of our client and in accordance with Section 4.1(h) of the
Amendment.
We advise you that a partner of the firm is an officer and director of
the Company and the Restricted Subsidiaries, a shareholder of the Company and a
trustee of a trust that is also a shareholder of the Company.
In connection with this opinion letter, we have examined executed
counterparts of the Amendment, the Guaranty executed by Sault Ste. Xxxxx Bridge
Company (the "SSM Guaranty") and the Consent of Guarantors (the "Consent") and
such other documents, records and other matters as we have considered necessary
in connection with the expression of the opinions hereinafter set forth. We have
assumed: (a) the genuineness of the signatures on all documents and instruments
(except for the signatures of the officer of the Company on the Amendment, of
each of the Restricted Subsidiaries on the Consent and of Sault Ste. Xxxxx
Bridge Company on the SSM Guaranty); and (b) that the Amendment, the Credit
Agreement as amended by the Amendment (the "Amended Credit Agreement") and the
Consent constitute the legal, valid and binding obligation of the respective
parties thereto, if any, other than the Company and the Restricted Subsidiaries.
Based upon the foregoing, we are of the opinion that:
1. Each of the Company and each of its Subsidiaries (other than WC Canada
Holdings, Inc. and Algoma Central Railway Inc. as to which we express no
opinion):
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation as set
forth in Schedule I hereto;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business,
execute and deliver the Amendment and the Consent and perform its obligations
under the Amended Credit Agreement and the Guaranty; and
(c) is duly qualified as a foreign corporation and is licensed and in good
standing under the laws of the jurisdictions set forth on Schedule I hereto.
Wisconsin Central Ltd. and Fox Valley & Western Ltd. have not qualified to do
business in Wisconsin since Wisconsin only requires an out-of-state railroad to
qualify to do business in that state if such railroad first transacted business
in the State of Wisconsin after January 1, 1994. Wisconsin Central Ltd. and Fox
Valley & Western Ltd. each began transacting business in Wisconsin prior to
January 1, 1994, so the failure to qualify to do business in Wisconsin does not
affect either railroad's ability to operate its railroad in Wisconsin.
2. The execution and delivery by the Company of the Amendment and the
performance by the Company of the Amended Credit Agreement, the execution and
delivery by Sault Ste. Xxxxx Bridge Company of the SSM Guaranty and the
execution and delivery by each Restricted Subsidiary of the Consent and the
performance by each Restricted Subsidiary of the Guaranty, have been duly
authorized by all necessary corporate action, and do not and will not: (a)
contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, (i) any document evidencing any Contractual Obligation to which
such Person is a party and of which we have knowledge after due inquiry, or (ii)
any order, injunction, writ or decree of any Governmental Authority to which
such Person or its property is subject; or (c) violate any Requirement of Law.
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3. No approval, consent, exemption, authorization, or other action by,
or notice to, or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, the Company or any of its Restricted Subsidiaries of the
Amendment, the Amended Credit Agreement, the Consent, the Guaranty or any other
Loan Document.
4. Each of the Amendment and the Amended Credit Agreement and each of
the Consent and the Guaranty constitutes the legal, valid and binding obligation
of the Company and its Restricted Subsidiaries, respectively, enforceable
against such Person in accordance with its respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally, by equitable
principles including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
enforceability is considered in a proceeding in equity or at law), and, in the
case of the Guaranty, by laws regarding fraudulent transfers and obligations.
5. To the best of our knowledge, there are no actions, suits,
proceedings, claims or disputes pending at law, in equity, in arbitration or
before any Governmental Authority, against the Company, or any of its Restricted
Subsidiaries or any of their respective properties which purport to adversely
affect the legality, validity, binding effect or enforceability of the
Amendment, the Amended Credit Agreement, the Consent or the Guaranty. To the
best of our knowledge, no injunction, writ, temporary restraining order or any
order of any nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or performance of the
Amendment, the Amended Credit Agreement, the Consent or the Guaranty, or
directing that the transactions provided for therein not be consummated as
therein provided.
6. None of the Company, any Person controlling the Company, or any
Subsidiary, is an "Investment Company" within the meaning of the Investment
Company Act of 1940. The Company is not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, any state public
utilities code, or any other Federal or state statute or regulation limiting its
ability to incur Indebtedness.
7. As of the date hereof, the Company has no Subsidiaries other than
those specifically disclosed in part (a) of Schedule 6.16 to the Credit
Agreement and Algoma Central Railway Inc., an Unrestricted Subsidiary.
We express no opinion as to the enforceability of (i) any provision for
the payment of interest on interest or (ii) any waiver of the right to trial by
jury.
The opinions set forth in this letter are limited to the Federal laws
of the United States of America, the laws of the State of Illinois, the Michigan
Business Corporation Act and the General Corporation Laws of the State of
Delaware.
This opinion letter is being furnished to you and may be relied upon
only by you and any permitted assignee or transferee in connection with the
Amended Credit
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Agreement and the transactions described therein. The opinions expressed herein
are limited in all respects to the law existing on the date hereof.
Very truly yours,
McLACHLAN, XXXXXXX & DOLL
By
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SCHEDULE I
TO OPINION OF
McLACHLAN, XXXXXXX & DOLL
Jurisdiction of Foreign
Name of Corporation Organization Qualifications
------------------- ------------ --------------
Wisconsin Central Delaware Illinois
Transportation Corporation
Wisconsin Central Ltd. Illinois Minnesota
Michigan
Fox Valley & Western Ltd. Illinois None
WCL Railcars, Inc. Illinois None
Wisconsin Central Delaware None
International, Inc.
Sault Ste. Xxxxx Michigan None
Bridge Company
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