FIFTH AMENDED AND RESTATED CREDIT AGREEMENT AMONG REYNOLDS AMERICAN INC., JPMORGAN CHASE BANK, N.A., as ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., as SYNDICATION AGENT, GENERAL ELECTRIC CAPITAL CORPORATION, LEHMAN COMMERCIAL PAPER INC., and...
Exhibit 10.1
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
XXXXXXXX AMERICAN INC.,
JPMORGAN CHASE BANK, N.A.,
as ADMINISTRATIVE AGENT,
as ADMINISTRATIVE AGENT,
CITIGROUP GLOBAL MARKETS INC.,
as SYNDICATION AGENT,
as SYNDICATION AGENT,
GENERAL ELECTRIC CAPITAL CORPORATION,
XXXXXX COMMERCIAL PAPER INC.,
and
MIZUHO CORPORATE BANK LTD.,
as DOCUMENTATION AGENTS,
as DOCUMENTATION AGENTS,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as CO-DOCUMENTATION AGENT,
as CO-DOCUMENTATION AGENT,
X.X. XXXXXX SECURITIES INC.,
and
CITIGROUP GLOBAL MARKETS INC.,
as JOINT LEAD ARRANGERS and JOINT BOOKRUNNERS
and
CITIGROUP GLOBAL MARKETS INC.,
as JOINT LEAD ARRANGERS and JOINT BOOKRUNNERS
and
VARIOUS LENDING INSTITUTIONS
Dated as of June 28, 2007
$550,000,000
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 28, 2007, among XXXXXXXX
AMERICAN INC., a North Carolina corporation (the “Borrower”), and the Lenders party hereto
from time to time. Unless otherwise defined herein, all capitalized terms used herein and defined
in Section 10 are used herein as so defined.
W I T N E S S E T H:
WHEREAS, the Borrower and certain financial institutions are party to a Credit Agreement,
dated as of May 7, 1999, as amended and restated as of November 17, 2000, as further amended and
restated as of May 10, 2002, as further amended and restated as of July 30, 2004, and as further
amended and restated as of May 31, 2006 (as so amended and restated and as the same has been
further amended, modified and/or supplemented to, but not including, the Fifth Restatement
Effective Date, the “Fourth Amended and Restated Credit Agreement”); and
WHEREAS, the parties hereto wish to amend and restate the Fourth Amended and Restated Credit
Agreement in its entirety as herein provided;
NOW, THEREFORE, the parties hereto agree that the Fourth Amended and Restated Credit Agreement
shall be and is hereby amended and restated in its entirety as follows:
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitments. (a) Subject to and upon the terms and conditions herein set forth,
each RL Lender severally agrees to make a loan or loans (each, a “Revolving Loan” and,
collectively, the “Revolving Loans”) to the Borrower, which Revolving Loans:
(i) shall be made at any time and from time to time on and after the Original Effective
Date and prior to such Lender’s RL Maturity Date;
(ii) may, at the option of the Borrower, be incurred and maintained as, and/or
converted into, Reference Rate Loans or Eurodollar Loans, provided that all
Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided
herein, consist entirely of Revolving Loans of the same Type;
(iii) may be repaid and reborrowed in accordance with the provisions hereof; and
(iv) shall not exceed for any Lender at any time outstanding that aggregate principal
amount which, when added to the product of (x) such Lender’s RL Percentage and (y) the sum
of (I) the aggregate Letter of Credit Outstandings plus (II) the aggregate
outstanding principal amount of all Swingline Loans then outstanding, equals the Revolving
Loan Commitment of such Lender at such time.
(b) Subject to and upon the terms and conditions herein set forth, each Swingline Lender
severally agrees, at any time and from time to time on and after the Original Effective Date and
prior to such Swingline Lender’s Swingline Maturity Date, to make a loan or loans (each, a
“Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower, which
Swingline Loans:
(i) shall be Reference Rate Loans;
(ii) shall have the benefit of the provisions of Section 1.01(c);
(iii) shall not exceed in the aggregate at any one time outstanding the Swingline
Commitment of such Swingline Lender at such time;
(iv) shall not exceed in the aggregate for all Swingline Lenders at any one time
outstanding that aggregate principal amount which, when combined with the aggregate
principal amount of all Revolving Loans then outstanding and all Letter of Credit
Outstandings at such time, equals the Total Revolving Loan Commitment then in effect; and
(v) may be repaid and reborrowed in accordance with the provisions hereof.
On (x) the Swingline Maturity Date of each Swingline Lender, all Swingline Loans of such
Swingline Lender shall be repaid in full and (y) the last Business Day of each calendar quarter,
all Swingline Loans shall be repaid in full and may not be reborrowed until the next succeeding
Business Day, provided that repayment of the Swingline Loans pursuant to this clause (y)
shall not be required to the extent that the aggregate outstanding principal amount of Swingline
Loans to be repaid is less than $10,000,000. No Swingline Lender will make a Swingline Loan after
it has received written notice from the Required Lenders that one or more of the applicable
conditions to Credit Events specified in Section 5 are not then satisfied.
(c) On any Business Day, any Swingline Lender (the “Notifying SL Lender”) may, in its
sole discretion, give notice to the RL Lenders that all then outstanding Swingline Loans shall be
funded with a Borrowing of Revolving Loans (provided that such notice shall be deemed to
have been automatically given by each Swingline Lender and each Swingline Lender shall constitute a
Notifying SL Lender upon the occurrence of an Event of Default under Section 9.05), in which case a
Borrowing of Revolving Loans constituting Reference Rate Loans (each such Borrowing, a
“Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all RL
Lenders pro rata based on each RL Lender’s RL Percentage, and the proceeds thereof
shall be applied directly to repay each Swingline Lender for its outstanding Swingline Loans. Each
RL Lender hereby irrevocably agrees to make Reference Rate Loans upon one Business Day’s notice (or
deemed notice) pursuant to each Mandatory Borrowing in the amount and in the manner specified in
the preceding sentence and on the date specified in writing by the Notifying SL Lender,
notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum
Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 5
are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing,
(iv) the date of such Mandatory Borrowing and (v) any reduction in the Total Revolving Loan
Commitment after any such
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Swingline Loans were made. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender
(other than a Swingline Lender with respect to Swingline Loans made by it) hereby agrees that it
shall forthwith purchase from each Swingline Lender (without recourse or warranty) such assignment
of its outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such
Swingline Loans ratably based upon their respective RL Percentages; provided that all
interest payable on such Swingline Loans shall be for the account of the relevant Swingline Lender
until the date the respective assignment is purchased and, to the extent attributable to the
purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of
purchase.
1.02 Minimum Amount of Each Borrowing; Maximum Number of Borrowings. The aggregate
principal amount of each Borrowing of Loans under a respective Tranche shall not be less than the
applicable Minimum Borrowing Amount with respect thereto (except that Mandatory Borrowings shall be
made in the amounts required by Section 1.01(c)). More than one Borrowing may be incurred on any
date; provided that at no time shall there be outstanding more than twenty Borrowings of
Eurodollar Loans in the aggregate for all Revolving Loans under this Agreement.
1.03 Notice of Borrowing of Committed Loans. (a) Whenever the Borrower desires to
incur (x) Eurodollar Loans hereunder, the Borrower shall give the Administrative Agent at the
Administrative Agent’s Office at least three Business Days’ prior notice of each Eurodollar Loan to
be incurred hereunder and (y) Reference Rate Loans hereunder (excluding Swingline Loans and
Revolving Loans made pursuant to a Mandatory Borrowing), the Borrower shall give the Administrative
Agent at the Administrative Agent’s Office at least one Business Day’s prior notice of each
Reference Rate Loan to be incurred hereunder, provided that (in each case) any such notice
shall be deemed to have been given on a certain day only if given before 11:00 A.M. (New York City
time) on such day. Each such notice (each, together with each notice of a Borrowing of Swingline
Loans pursuant to Section 1.03(b), a “Notice of Borrowing”), shall be irrevocable and shall
be in writing, or by telephone promptly confirmed in writing, appropriately completed to specify:
(i) the aggregate principal amount of the Revolving Loans to be incurred pursuant to such
Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), and (iii) whether the
Revolving Loans being incurred pursuant to such Borrowing are to be initially maintained as
Reference Rate Loans or, to the extent permitted hereunder, Eurodollar Loans and, if Eurodollar
Loans, the initial Interest Period to be applicable thereto. The Administrative Agent shall
promptly give each RL Lender notice of such proposed Borrowing, of such RL Lender’s proportionate
share thereof and of the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing.
(b) Whenever the Borrower desires to incur Swingline Loans hereunder, it shall give the
Administrative Agent at the Administrative Agent’s Office written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of Swingline Loans prior to 11:00 A.M. (New York
time) on the date of such Borrowing. Each such notice shall be
irrevocable and shall specify (i) the aggregate principal amount of the Swingline Loans to be
made pursuant to such Borrowing and (ii) the date of Borrowing (which shall be a Business Day).
The Administrative Agent shall promptly give each Swingline Lender written notice (or
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telephonic
notice promptly confirmed in writing) of each proposed Borrowing of Swingline Loans, of such
Swingline Lender’s proportionate share thereof and of the other matters covered by the Notice of
Borrowing.
(c) Mandatory Borrowings shall be made upon the notice specified in Section 1.01(c), with the
Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of Mandatory
Borrowings as set forth in such Section.
(d) Without in any way limiting the obligation of the Borrower to confirm in writing any
notice it may give hereunder by telephone, the Administrative Agent may act prior to receipt of
written confirmation without liability upon the basis of such telephonic notice, believed by the
Administrative Agent in good faith to be from an Authorized Officer of the Borrower. In each such
case, the Borrower hereby waives the right to dispute the Administrative Agent’s record of the
terms of any such telephonic notice.
1.04 Disbursement of Funds. (a) No later than 1:00 P.M. (New York time) on the date
of each Borrowing (including Mandatory Borrowings), each Lender with a Commitment under the
respective Tranche will make available its pro rata portion, if any, of each
Borrowing requested to be made on such date in the manner provided in Section 1.04(b) below.
(b) Each Lender with a Commitment under the respective Tranche shall make available all
amounts it is to fund under any Borrowing in U.S. Dollars and immediately available funds to the
Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will (except
in the case of Mandatory Borrowings) make available to the Borrower by depositing to its account at
the Administrative Agent’s Office the aggregate of the amounts so made available in U.S. Dollars.
Unless the Administrative Agent shall have been notified by any Lender prior to the date of any
such Borrowing that such Lender does not intend to make available to the Administrative Agent its
portion of the Borrowing or Borrowings to be made on such date, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the Administrative Agent by
such Lender and the Administrative Agent has made available same to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from such Lender or the Borrower, as the case may be, interest on
such corresponding amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (x) if paid by such
Lender, the overnight Federal Funds Rate or (y) if paid by the Borrower, the then applicable
rate of interest, calculated in accordance with Section 1.08, for the respective Loans.
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(c) Nothing in this Section 1.04 shall be deemed to relieve any Lender from its obligation to
fulfill its commitments hereunder or to prejudice any rights which the Borrower may have against
any Lender as a result of any default by such Lender hereunder.
1.05 Notes; Register. (a) The Borrower’s obligation to pay the principal of, and
interest on, the Loans made by each Lender shall be set forth in the Register maintained by the
Administrative Agent pursuant to Section 12.04(f) and, subject to the provisions of Section
1.05(e), shall be evidenced (i) if Revolving Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit A-1 with blanks appropriately
completed in conformity herewith (each, a “Revolving Note” and, collectively, the
“Revolving Notes”) and (ii) if Swingline Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit A-2 with blanks appropriately
completed in conformity herewith (the “Swingline Note” and, together with the Revolving
Notes, each, a “Note” and, collectively, the “Notes”).
(b) The Revolving Note issued to each Lender with a Revolving Loan Commitment or outstanding
Revolving Loans shall (i) be executed by the Borrower, (ii) be payable to such Lender or its
registered assigns and be dated the Fifth Restatement Effective Date (or, in the case of any
Revolving Note issued after the Fifth Restatement Effective Date, the date of issuance thereof),
(iii) be in a stated principal amount equal to the Revolving Loan Commitment of such Lender on the
date of issuance thereof (or, if issued after the termination of such Revolving Loan Commitment, in
a stated principal amount equal to the outstanding principal amount of the Revolving Loans of such
Lender on the date of the issuance thereof) and be payable in the principal amount of the Revolving
Loans evidenced thereby from time to time, (iv) mature on such Lender’s RL Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the Reference Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary
repayment as provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii)
be entitled to the benefits of this Agreement and the other Credit Documents.
(c) The Swingline Note issued to each Swingline Lender with a Swingline Commitment or
outstanding Swingline Loans shall (i) be executed by the Borrower, (ii) be payable to such
Swingline Lender or its registered assigns and be dated the Fifth Restatement Effective Date (or,
in the case of any Swingline Note issued after the Fifth Restatement Effective Date, the date of
issuance thereof), (iii) be in a stated principal amount equal to the Swingline Commitment of such
Swingline Lender on the date of issuance thereof (or, if issued after the termination of such
Swingline Commitment, in a stated principal amount equal to the outstanding principal amount of the
Swingline Loans of such Swingline Lender on the date of the issuance thereof) and be payable in the
principal amount of the Swingline Loans evidenced thereby from time to time, (iv) mature on such
Swingline Lender’s Swingline Maturity Date, (v) bear interest as provided in the appropriate clause
of Section 1.08 in respect of the Reference Rate Loans evidenced thereby, (vi) be subject to
voluntary repayment as provided in Section
4.01 and mandatory repayment as provided in Section 4.02 and (vii) be entitled to the benefits
of this Agreement and the other Credit Documents.
(d) Each Lender will note on its internal records the amount of each Loan made by it and each
payment in respect thereof and will prior to any transfer of its Note endorse
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on the reverse side
thereof the outstanding principal amount of Loans evidenced thereby. Failure to make any such
notation or any error in any such notation shall not affect the Borrower’s obligations in respect
of such Loans.
(e) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement,
Notes shall only be delivered to Lenders that at any time specifically request the delivery of such
Notes. No failure of any Lender to request or obtain a Note evidencing its Loans to the Borrower
shall affect or in any manner impair the obligations of the Borrower to pay the Loans (and all
related Obligations) which would otherwise be evidenced thereby in accordance with the requirements
of this Agreement, and shall not in any way affect the security or guaranties therefor provided
pursuant to the various Credit Documents. Any Lender that does not have a Note evidencing its
outstanding Loans shall in no event be required to make the notations otherwise described in
preceding clause (d). At any time when any Lender requests the delivery of a Note to evidence any
of its Loans, the Borrower shall promptly execute and deliver to the respective Lender the
requested Note or Notes in the appropriate amount or amounts to evidence such Loans.
1.06 Conversions. The Borrower shall have the option to convert on any Business Day
all or a portion equal to at least the applicable Minimum Borrowing Amount of the outstanding
principal amount of Revolving Loans of one Type into a Borrowing or Borrowings of Revolving Loans
of another Type; provided that (i) no partial conversion of Eurodollar Loans shall reduce
the outstanding principal amount of Eurodollar Loans made pursuant to a single Borrowing to less
than the applicable Minimum Borrowing Amount, (ii) Reference Rate Loans may only be converted into
Eurodollar Loans if no Event of Default is in existence on the date of the conversion and (iii)
Borrowings resulting from conversions pursuant to this Section 1.06 shall be limited in number as
provided in Section 1.02. Each such conversion shall be effected by the Borrower by giving the
Administrative Agent at the Administrative Agent’s Office prior to 11:00 A.M. (New York time) at
least three Business Days’ (or one Business Day’s in the case of a conversion into Reference Rate
Loans) prior written notice (or telephonic notice promptly confirmed in writing) (each, a
“Notice of Conversion”) specifying the Revolving Loans to be so converted, the Type of
Revolving Loans to be converted into and, if to be converted into Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall give each Lender notice
as promptly as practicable of any such proposed conversion affecting any of its Revolving Loans.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans and Swingline Loans under
this Agreement shall be loaned by the Lenders pro rata on the basis of their
respective Revolving Loan Commitments or Swingline Commitments, as the case may be. It is
understood that no Lender
shall be responsible for any default by any other Lender in its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Reference Rate Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by acceleration or
otherwise) at a rate per annum which shall at all times be the Applicable Margin plus the
Reference Rate, in each case as in effect from time to time.
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(b) The unpaid principal amount of each Eurodollar Loan shall bear interest from the date of
the Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum
which shall at all times be the Applicable Margin plus the relevant Eurodollar Rate.
(c) Overdue principal and, to the extent permitted by law, overdue interest in respect of each
Loan under a given Tranche shall, in each case, bear interest at a rate per annum equal to the
Reference Rate in effect from time to time plus the sum of (i) 2% and (ii) the Applicable
Margin for Loans of the respective Tranche maintained as Reference Rate Loans; provided
that each Eurodollar Loan shall bear interest after maturity (whether by acceleration or otherwise)
until the end of the Interest Period then applicable thereto at a rate per annum equal to 2% in
excess of the rate of interest applicable thereto at maturity. All other overdue amounts payable
hereunder and under any other Credit Document shall bear interest at a rate per annum equal to the
rate which is 2% in excess of the rate applicable to Revolving Loans that are maintained as
Reference Rate Loans from time to time. Interest that accrues under this Section 1.08(c) shall be
payable on demand.
(d) Interest on each Loan shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable (i) in respect of each Reference
Rate Loan, quarterly in arrears on each Quarterly Payment Date, (ii) in respect of each Eurodollar
Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest
Period in excess of three months, on each date occurring at three-month intervals after the first
day of such Interest Period, and on any prepayment (on the amount prepaid) and (iii) in respect of
each Loan, at maturity (whether by acceleration or otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in accordance with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest rate for any Borrowing of
Eurodollar Loans for any Interest Period, shall promptly notify the Borrower and the Lenders
thereof.
1.09 Interest Periods. At the time the Borrower gives a Notice of Borrowing or Notice
of Conversion in respect of the making of, or conversion into, a Borrowing of Eurodollar Loans (in
the case of
the initial Interest Period applicable thereto) or prior to 11:00 A.M. (New York time) on the
third Business Day prior to the expiration of an Interest Period applicable to a Borrowing of
Eurodollar Loans, it shall have the right to elect by giving the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of the Interest Period applicable to
such Borrowing, which Interest Period shall, at the option of the Borrower, be a one, two, three or
six month period. Notwithstanding anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of Eurodollar Loans shall commence on
the date of such Borrowing (including the date of any conversion from a Borrowing of
Reference Rate Loans) and each Interest Period occurring thereafter in
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respect of such
Borrowing shall commence on the day on which the next preceding Interest Period expires;
(ii) if any Interest Period relating to a Borrowing of Eurodollar Loans begins on a day
for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of such calendar
month;
(iii) if any Interest Period would otherwise expire on a day which is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day, provided
that if any Interest Period in respect of a Eurodollar Loan would otherwise expire on a day
which is not a Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next preceding Business Day;
and
(iv) no Interest Period in respect of any Borrowing of Eurodollar Loans shall extend
beyond the RL Maturity Date for any Lender participating in such Borrowing.
Notwithstanding the foregoing, if an Event of Default is in existence at the time any Interest
Period in respect of any Eurodollar Loans is to expire, such Eurodollar Loans may not be continued
as Eurodollar Loans but instead shall be automatically converted on the last day of such Interest
Period into Reference Rate Loans. If upon the expiration of any Interest Period in respect of
Eurodollar Loans, the Borrower has failed to elect a new Interest Period to be applicable thereto
as provided above, the Borrower shall be deemed to have elected to convert such Borrowing into a
Borrowing of Reference Rate Loans effective as of the expiration date of such current Interest
Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that (x) in the case of
clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any
Lender shall have determined (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest Period that, by
reason of any changes arising on or after the Fifth Restatement Effective Date affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Eurodollar Loans because of (x)
any change since the Fifth Restatement Effective Date in any applicable law, governmental
rule, regulation, guideline or order (or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation, guideline or
order) such as, for example, but not limited to, (A) a change in official reserve
requirements, but, in all events, excluding reserves required under Regulation D to the
extent included in the computation of the Eurodollar Rate or (B) a
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change in the basis of
taxation of payments to a Lender of the principal of or interest on the Loans or any other
amount payable hereunder (except for changes in the rate of tax on, or determined by
reference to, the net income or net profits of such Lender imposed by the jurisdiction in
which its principal office or applicable lending office is located) and/or (y) other
circumstances affecting the interbank Eurodollar market; or
(iii) at any time, that the making or continuance of any Loan (other than Reference
Rate Loans) has become unlawful by compliance by such Lender in good faith with any law,
governmental rule, regulation, guideline or order (or would conflict with any such
governmental rule, regulation, guideline or order not having the force of law even though
the failure to comply therewith would not be unlawful), or, in the case of a Eurodollar
Loan, has become impracticable as a result of a contingency occurring after the Fifth
Restatement Effective Date which materially and adversely affects the interbank Eurodollar
market;
then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i)
above) shall on such date give notice (if by telephone confirmed in writing) to the Borrower and to
the Administrative Agent of such determination (which notice the Administrative Agent shall
promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above,
Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies
the Borrower and the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by
the Borrower with respect to Eurodollar Loans which have not yet been incurred shall be deemed
rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such
Lender, upon written demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Lender in its sole discretion
shall determine) as shall be required to compensate such Lender for such increased costs or
reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to
such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the
Borrower by such Lender shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the
actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section
1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan
affected pursuant to Section 1.10(a)(iii) shall) either (i) if the affected Eurodollar Loan is
then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent
telephonic notice (confirmed promptly in writing) thereof as promptly as practicable after the
Borrower was notified by a Lender pursuant to Section 1.10(a)(ii) or (iii), or (ii) if the affected
Eurodollar Loan is then outstanding, upon at least three Business Days’ notice to the
Administrative Agent, require the affected Lender to convert each such Eurodollar Loan into a
Reference Rate Loan; provided that if more than one Lender is affected in a similar manner
at any time, then all such similarly affected Lenders must be treated the same pursuant to this
Section 1.10(b).
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(c) If after the Fifth Restatement Effective Date, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in the interpretation
or administration thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by a Lender or its parent with any
request or directive made or adopted after the Fifth Restatement Effective Date regarding capital
adequacy (whether or not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such Lender’s or its
parent’s capital or assets as a consequence of such Lender’s commitments or obligations hereunder
to a level below that which such Lender or its parent could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender’s or its parent’s
policies with respect to capital adequacy), then from time to time, within 15 days after demand by
such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or its parent for such reduction. Each
Lender, upon determining in good faith that any additional amounts will be payable pursuant to this
Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall set
forth in reasonable detail the basis of the calculation of such additional amounts, although the
failure to give any such notice shall not, subject to Section 1.15, release or diminish any of the
Borrower’s obligations to pay additional amounts pursuant to this Section 1.10(c) upon receipt of
such notice.
1.11 Compensation. The Borrower shall compensate each Lender, upon its written
request (which request shall set forth in reasonable detail the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including, without limitation,
any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Lender to fund its Eurodollar Loans but excluding any loss of
anticipated profit with respect to such Loans) which such Lender may sustain: (i) if for any reason
(other than a default by such Lender or the Administrative Agent) a Borrowing of Eurodollar Loans
does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10); (ii) if
any repayment or conversion of any of its Eurodollar Loans occurs on a date which is not the last
day of an Interest Period applicable thereto; (iii) if any prepayment of any of its Eurodollar
Loans is not made on any date specified in a notice of prepayment given by the Borrower; or (iv) as
a consequence of (x) any other default by the Borrower to repay its Eurodollar Loans when required
by the terms of this Agreement or (y) an election made pursuant to Section 1.10(b).
Calculation of all amounts payable to a Lender under this Section 1.11 in respect of
Eurodollar Loans shall be made as though that Lender had actually funded its relevant Eurodollar
Loan through the purchase of a Eurodollar deposit bearing interest at the Eurodollar Rate in an
amount equal to the amount of that Loan, having a maturity comparable to the relevant Interest
Period and through the transfer of such Eurodollar deposit from an offshore office of that Lender
to a domestic office of that Lender in the United States of America; provided,
however, that each Lender may fund each of its Eurodollar Loans in any manner it sees fit.
1.12 Change of Lending Office. Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of Section 1.10(a)(ii) or (iii), 2.05 or 4.04 with respect to
such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall
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policy considerations of such Lender) to designate another lending office for any Loans affected by
such event; provided that such designation is made on such terms that such Lender and its
lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding
the consequence of the event giving rise to the operation of any such Section. Nothing in this
Section 1.12 shall affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Section 1.10, 2.05 or 4.04.
1.13 [RESERVED].
1.14 Replacement of Lenders. If (w) any Lender becomes a Non-Continuing Lender at any
time after the first Extension Response Date occurring after the Fifth Restatement Effective Date,
(x) any Lender becomes a Defaulting Lender or otherwise defaults in its obligations to make Loans
or fund Unpaid Drawings, (y) any Lender refuses to give timely consent to proposed changes,
waivers, discharges or terminations with respect to this Agreement which have been approved by the
Required Lenders as, and to the extent, provided in Section 12.12(b), or (z) any Lender is owed
increased costs under Section 1.10(a) or (c), Section 2.05 or Section 4.04 which in the judgment of
the Borrower are material in amount and which are not otherwise requested generally by the other
Lenders, the Borrower shall have the right, if no Event of Default then exists and, in the case of
a Lender described in clause (z) above, such Lender has not withdrawn its request for such
compensation or changed its applicable lending office with the effect of eliminating or
substantially decreasing (to a level which in the judgment of the Borrower is not material) such
increased cost, to replace such Lender (the “Replaced Lender”) with one or more other
Eligible Transferee or Eligible Transferees (collectively, the “Replacement Lender”)
reasonably acceptable to the Administrative Agent and each Significant Letter of Credit Issuer,
provided that (i) at the time of any replacement pursuant to this Section 1.14, the
Replacement Lender shall enter into one or more Assignment Agreements pursuant to which the
Replacement Lender shall acquire all of the Commitments and outstanding Loans of, and
participations in Letters of Credit by, the Replaced Lender and, in connection therewith, shall pay
to (x) the Replaced Lender in respect thereof an amount equal to the sum of (a) an amount equal to
the principal of, and all accrued interest on, all outstanding Loans of the Replaced Lender, (b) an
amount equal to such Replaced Lender’s participations in Unpaid Drawings that have been funded by
such Replaced Lender, together with all then accrued but unpaid interest with respect thereto at
such time, and
(c) an amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender
pursuant to Section 3.01 hereof and (y) the appropriate Letter of Credit Issuer an amount equal to
such Replaced Lender’s RL Percentage of any Unpaid Drawing not funded by such Replaced Lender, (ii)
all Obligations of the Borrower owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Lender concurrently with such
replacement and (iii) in the case of the replacement of a Replaced Lender that is a Non-Continuing
Lender as contemplated by clause (w) above, the RL Maturity Date applicable to the Replacement
Lender’s Commitment shall be the Final RL Maturity Date then in effect. Upon the execution of the
respective assignment documentation, the payment of amounts referred to in clauses (i) and (ii)
above and, if so requested by the Replacement Lender, delivery to the Replacement Lender of the
appropriate Note executed by the Borrower (if any), the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder, except
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with respect
to indemnification provisions under this Agreement, which shall survive as to such Replaced Lender.
1.15 Notice of Certain Costs. Notwithstanding anything in this Agreement to the
contrary, to the extent any notice required by Section 1.10 or 2.05 is given by any Lender more
than 180 days after the occurrence of the event giving rise to the additional cost, reduction in
amounts or other additional amounts of the type described in such Section, such Lender shall not be
entitled to compensation under Section 1.10 or Section 2.05, as the case may be, for any such
amounts incurred or accruing prior to the giving of such notice to the Borrower.
1.16 Incremental RL Commitments. (a) The Borrower shall have the right, without
requiring the consent of any of the Lenders, to request at any time and from time to time after the
Fifth Restatement Effective Date so long as no Default or Event Default has occurred and is
continuing, that one or more Lenders (and/or one or more other Persons which are Eligible
Transferees and which will become Lenders as provided below) satisfactory to the Administrative
Agent and each Significant Letter of Credit Issuer (with such consent, in any such case, not to be
unreasonably withheld) provide Incremental RL Commitments and, subject to the applicable terms and
conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood
and agreed, however, that (i) until such time, if any, as such Lender has agreed in its sole
discretion to provide an Incremental RL Commitment and executed and delivered to the Administrative
Agent an Incremental RL Commitment Agreement in respect thereof as provided in clause (b) of this
Section 1.16, such Lender shall not be obligated to fund any Revolving Loans in excess of its
Revolving Loan Commitment as in effect prior to giving effect to such Incremental RL Commitment
provided pursuant to this Section 1.16, (ii) any Lender (including any Eligible Transferee who will
become a Lender) may so provide an Incremental RL Commitment without the consent of any other
Lender, (iii) each provision of Incremental RL Commitments on a given date pursuant to this Section
1.16 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who
will become a Lender)) of at least $20,000,000, (iv) the aggregate amount of all Incremental RL
Commitments provided pursuant to this Section 1.16 shall not exceed $350,000,000, (v) all Revolving
Loans made
pursuant to an Incremental RL Commitment (and all interest, fees and other amounts payable
thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and
shall be secured by the Security Documents, and guaranteed under the Subsidiary Guaranty, on a
pari passu basis with all other Obligations under this Agreement secured by the
Security Documents and guaranteed under the Subsidiary Guaranty and (vi) all actions taken by the
Borrowers pursuant to this Section 1.16 shall be done in coordination with the Administrative
Agent.
(b) At the time of the provision of Incremental RL Commitments pursuant to this Section 1.16,
the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which
agrees to provide an Incremental RL Commitment (each, an “Incremental RL Lender”) shall
execute and deliver to the Administrative Agent an Incremental RL Commitment Agreement, with the
effectiveness of such Incremental RL Lender’s Incremental RL Commitment to occur on the date set
forth in such Incremental RL Commitment Agreement, which date in any event shall be no earlier than
the date on which (w) all fees required to be paid in connection therewith at the time of such
effectiveness shall have been paid (including, without limitation, any agreed upon up-front or
arrangement fees), (x) all Incremental Commitment
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Requirements are satisfied, (y) all other
conditions set forth in this Section 1.16 shall have been satisfied, and (z) all other conditions
precedent that may be set forth in such Incremental RL Commitment Agreement shall have been
satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of
each Incremental RL Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment
under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such
Incremental RL Commitments, (ii) Annex I shall be deemed modified to reflect the revised Revolving
Loan Commitments of the affected Lenders and (iii) to the extent requested by any Incremental RL
Lender, Revolving Notes will be issued, at the Borrower’s expense, to such Incremental RL Lender in
conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental RL Commitments pursuant to this Section 1.16,
the Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving
Loans of certain of the RL Lenders, and incur additional Revolving Loans from certain other RL
Lenders (including the Incremental RL Lenders), in each case to the extent necessary so that all of
the RL Lenders participate in each outstanding Borrowing of Revolving Loans pro
rata on the basis of their respective Revolving Loan Commitments (after giving effect to
any increase in the Total Revolving Loan Commitment pursuant to this Section 1.16) and with the
Borrower being obligated to pay to the respective RL Lenders any costs of the type referred to in
Section 1.11 in connection with any such repayment and/or Borrowing.
1.17 Maturity Date Extensions. Prior to (but not less than 60 days nor more than 90
days prior to) the applicable Extension Date, the Borrower may make a written request to the
Administrative Agent, who shall forward a copy of each such request to each of the Continuing
Lenders, that the Final RL Maturity Date then in effect be extended to the date occurring twelve
(12) months after such existing Final RL Maturity Date. Such request shall be accompanied by a
certificate of an Authorized Officer of the Borrower stating that no Default or Event of Default
has occurred and is continuing. If, by the date (an “Extension Response Date”) which is 30
days prior to the
applicable Extension Date, Continuing Lenders which are not Defaulting Lenders holding at
least a majority of the Revolving Loan Commitments held by Continuing Lenders which are not
Defaulting Lenders agree thereto in writing, the Final RL Maturity Date, and the RL Maturity Date
of each Continuing Lender then consenting, shall be automatically extended to the date occurring
twelve (12) months after the then existing Final RL Maturity Date. In the event that the Borrower
has not obtained the requisite percentage of Continuing Lenders to permit an extension by the
relevant Extension Response Date, the Borrower may extend the deadline for obtaining such
percentage to the 30th day following such Extension Response Date in order to take such actions
with respect to any Lender that is a Non-Continuing Lender after giving effect to such Extension
Response Date in order to obtain the requisite percentage of Lenders constituting Continuing
Lenders to permit such extension (including actions contemplated by Section 1.14). The
Administrative Agent shall notify the Borrower and each Lender of the effectiveness of any such
extension. No Lender shall be obligated to grant any extensions pursuant to this Section 1.17, and
any such extension shall be in the sole discretion of each of them. A Lender’s RL Maturity Date
shall not be so extended pursuant to this Section 1.17 for (x) any Lender that is a Non-Continuing
Lender at the time such request for extension is made and (y) any Continuing Lender at the time of
such request that has not consented in writing, within the time specified above, to any such
request for the extension thereof. It is understood and agreed that the Borrower shall have a
total of two (2) opportunities
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to request an extension pursuant to this Section 1.17 and that each
of such extension (if validly effected pursuant to this Section 1.17) shall extend the Final RL
Maturity Date then in effect by twelve (12) months.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and conditions set forth
herein, the Borrower may request that a Letter of Credit Issuer issue, at any time and from time to
time on or after the Original Effective Date and prior to the L/C Termination Date, for the account
of the Borrower and in support of any Permitted Obligations, to replace Existing Letters of Credit,
to effect Permitted Litigation Bonding or in support of such other obligations of the Borrower
and/or any of its Subsidiaries as are acceptable to the Administrative Agent, an irrevocable
standby letter of credit or letters of credit in such form as may be approved by such Letter of
Credit Issuer and the Administrative Agent, acting reasonably, and, subject to and upon the terms
and conditions set forth in this Agreement, the Letter of Credit Issuer will issue the Letters of
Credit so requested to be issued.
(b) Notwithstanding the foregoing (i) no Letter of Credit shall be issued (x) the Stated
Amount of which, when added to the Letter of Credit Outstandings at such time, would exceed, when
added to the sum of the aggregate principal amount of all Revolving Loans and all Swingline Loans
then outstanding, the Total Revolving Loan Commitment at such time, (y) with an expiration date
beyond the then RL Maturity Date of any RL Lender if after giving effect thereto the Stated Amount
of all Letters of Credit with an expiration date beyond such RL Maturity Date would exceed, when
added to the aggregate outstanding principal amount of all Revolving Loans with Interest Periods
that extend beyond such RL Maturity Date, the Expected
Total Revolving Loan Commitment in effect for each day on which such Letter of Credit is to be
outstanding that occurs beyond such RL Maturity Date or (z) with an expiration date beyond the L/C
Termination Date or the Business Day next preceding the then RL Maturity Date of the Letter of
Credit Issuer thereof (the “L/C Issuer Maturity Date”), provided that, at the
request of the Borrower, a Letter of Credit Issuer may in its sole discretion permit any Letter of
Credit to have an expiration date after the L/C Termination Date or the L/C Issuer Maturity Date by
giving written notice of such permission to the Borrower, so long as upon the earlier to occur of
(I) the date of any request of the respective Letter of Credit Issuer and (II) the 91st day
preceding the L/C Termination Date or the L/C Issuer Maturity Date, as the case may be, the
Borrower shall pay to the respective Letter of Credit Issuer an amount of cash and/or Marketable
Investments acceptable to such Letter of Credit Issuer equal to 105% of the Letter of Credit
Outstandings with respect to such Letter of Credit, such cash and Marketable Investments to be held
as security for the obligations of the Borrower in respect of such Letter of Credit in a cash
collateral account, and pursuant to cash collateral arrangements, satisfactory to such Letter of
Credit Issuer; (ii) each Letter of Credit shall be denominated in U.S. Dollars or an Approved
Alternate Currency; and (iii) no Letter of Credit shall be issued by a Letter of Credit Issuer
after it has received a notice in writing from the Required Lenders that one or more of the
applicable conditions specified in Section 5 are not then satisfied.
(c) Annex III hereto contains a description of all letters of credit issued by any Lender for
the account of the Borrower pursuant to the Fourth Amended and Restated Credit Agreement and
outstanding on the Fifth Restatement Effective Date (and setting forth, with
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respect to each such
letter of credit, (i) the name of the issuing lender, (ii) the letter of credit number, (iii) the
name(s) of the account party or account parties, (iv) the stated amount (which shall be in U.S.
Dollars or an Approved Alternate Currency), (v) the name of the beneficiary and (vi) the expiry
date). Each such letter of credit, including any extension or renewal thereof (each, as amended
from time to time in accordance with the terms thereof and hereof, an “Existing Letter of
Credit”) shall constitute a “Letter of Credit” issued for the account of the Borrower for all
purposes of this Agreement, issued, for purposes of Section 2.03(a), on the Fifth Restatement
Effective Date and the respective issuer(s) thereof shall constitute the “Letter of Credit
Issuer(s)” with respect to such Letter of Credit for all purposes of this Agreement.
2.02 Letter of Credit Requests. Whenever the Borrower desires that a Letter of Credit
be issued for its account, it shall give the Administrative Agent and the Letter of Credit Issuer
that is to issue same at least five Business Days’ (or such lesser number of days as may be agreed
to by the relevant Letter of Credit Issuer) written notice thereof. Each notice shall be executed
by the Borrower and shall be in the form of Exhibit B attached hereto (each, a “Letter of
Credit Request”). The Administrative Agent shall promptly transmit copies of each Letter of
Credit Request to each RL Lender.
2.03 Letter of Credit Participations. (a) Immediately upon the issuance by a Letter
of Credit Issuer of any Letter of Credit (and on the Fifth Restatement Effective Date, in the case
of Existing Letters of Credit), such Letter of Credit Issuer shall be deemed to have sold and
transferred to each other RL
Lender (each such other RL Lender, in its capacity under this Section 2.03, a
“Participant”), and each such Participant shall be deemed irrevocably and unconditionally
to have purchased and received from such Letter of Credit Issuer, without recourse or warranty, an
undivided interest and participation (each, a “participation”), to the extent of such
Participant’s RL Percentage, in such Letter of Credit, each substitute letter of credit, each
drawing made thereunder and the obligations of the Borrower under this Agreement with respect
thereto, and any security therefor that remains in effect after the Original Effective Date, or
guaranty pertaining thereto (although Letter of Credit Fees will be paid directly to the
Administrative Agent for the ratable account of the Participants as provided in Section 3.01(c) and
the Participants shall have no right to receive any portion of any Facing Fees). Upon any change
in the Revolving Loan Commitments of the RL Lenders pursuant to Section 1.14, 1.16 or 12.04 or the
termination of a Commitment of a Non-Continuing Lender, it is hereby agreed that, with respect to
all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to
the participations pursuant to this Section 2.03 to reflect the new RL Percentages of the assignor
and assignee RL Lender and of all RL Lenders or all Continuing Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the Letter of Credit Issuer
issuing same shall have no obligation relative to the Participants other than to confirm that any
documents required to be delivered under such Letter of Credit have been delivered and that they
appear to comply on their face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by a Letter of Credit Issuer under or in connection with any Letter of Credit
issued by it, if taken or omitted in the absence of gross negligence or willful misconduct, shall
not create for such Letter of Credit Issuer any resulting liability.
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(c) In the event that any Letter of Credit Issuer makes any payment under any Letter of Credit
issued by it and the Borrower shall not have reimbursed such amount in full to such Letter of
Credit Issuer pursuant to Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent and each Participant of such failure, and each Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter of Credit Issuer,
the amount of such Participant’s RL Percentage of such unreimbursed payment in U.S. Dollars and in
same day funds; provided, however, that no Participant shall be obligated to pay to
the Administrative Agent for the account of such Letter of Credit Issuer its RL Percentage of such
unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the
part of such Letter of Credit Issuer (as determined by a court of competent jurisdiction in a final
and non-appealable decision). If such Letter of Credit Issuer so notifies, prior to 11:00 A.M.
(New York time) on any Business Day, any Participant required to fund a payment under a Letter of
Credit, such Participant shall make available to the Administrative Agent for the account of such
Letter of Credit Issuer such Participant’s RL Percentage of the amount of such payment on such
Business Day in same day funds. If and to the extent such Participant shall not have so made its
RL Percentage of the amount of such payment available to the Administrative Agent for the account
of such Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the
account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest
thereon for each day from such date until the date such amount is paid to the Administrative Agent
for the account of such Letter of Credit Issuer at the overnight Federal Funds Rate. The failure
of any
Participant to make available to the Administrative Agent for the account of the applicable
Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit shall not
relieve any other Participant of its obligation hereunder to make available to the Administrative
Agent for the account of such Letter of Credit Issuer its RL Percentage of any payment under any
Letter of Credit on the date required, as specified above, but no Participant shall be responsible
for the failure of any other Participant to make available to the Administrative Agent such other
Participant’s RL Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received for the account of such
Letter of Credit Issuer any payments from the Participants pursuant to the preceding clause (c),
such Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each Participant which has paid its RL Percentage of such reimbursement
obligation, in U.S. Dollars and in same day funds, an amount equal to such Participant’s share
(based upon the proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such reimbursement
obligation and interest thereon accruing after the purchase of the respective participations.
(e) The obligations of the Participants to make payments to the Administrative Agent for the
account of a Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not
subject to counterclaim, set-off or other defense or any other qualification or exception
whatsoever (except as expressly provided in Section 2.03(c)) and shall be made in accordance with
the terms and conditions of this Agreement under all circumstances, including, without limitation,
any of the following circumstances:
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(i) any lack of validity or enforceability of this Agreement or any of the other Credit
Documents;
(ii) the existence of any claim, set-off, defense or other right which the Borrower may
have at any time against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, any Letter of Credit Issuer, any Lender, or other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between the Borrower and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents;
(v) the occurrence of any Default or Event of Default; or
(vi) the failure of any condition precedent set forth in Section 5 hereof to have been
satisfied at the time of the issuance of any Letter of Credit, unless the applicable
Letter of Credit Issuer shall have received a notice in writing to such effect from the
Required Lenders pursuant to Section 2.01(b)(iv) hereof prior to the issuance of such Letter
of Credit.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to
reimburse the respective Letter of Credit Issuer, by making payment to the Administrative Agent in
U.S. Dollars and immediately available funds at the Administrative Agent’s Office, for any payment
or disbursement made by such Letter of Credit Issuer under any Letter of Credit issued by it (each
such amount so paid until reimbursed, an “Unpaid Drawing”) promptly after, and in any event
within one Business Day after the date of, notice given by such Letter of Credit Issuer to the
Borrower of such payment (which notice each Letter of Credit Issuer hereby agrees to give promptly
after the making of any payment or disbursement under a Letter of Credit, provided that no
such notice shall be required to be given if a Default or an Event of Default under Section 9.05
shall have occurred and be continuing, in which case the Unpaid Drawing shall be due and payable
immediately without presentment, demand, protest or notice of any kind (all of which are hereby
waived by the Borrower)), with interest on the amount so paid or disbursed by such Letter of Credit
Issuer, to the extent not reimbursed prior to 1:00 P.M. (New York time) on the date of such payment
or disbursement, from and including the date paid or disbursed to but excluding the date such
Letter of Credit Issuer is reimbursed therefor, at a rate per annum which shall be the Applicable
Margin for Revolving Loans maintained as Reference Rate Loans plus the Reference Rate as in
effect from time to time (plus an additional 2% per annum if not reimbursed by the second
Business Day following any such notice of payment or disbursement), such interest to be payable on
demand. Notwithstanding the foregoing, to the extent that a Letter of Credit Issuer of a Letter of
Credit denominated in a currency other than U.S. Dollars has agreed in writing to such arrangement
at the time of the
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issuance of such Letter of Credit, the Borrower shall reimburse any Drawing
thereunder in the currency in which such Letter of Credit is denominated; provided that (x)
if any such Drawing is made at a time when there exists an Event of Default or (y) if such
reimbursement is not made by the close of business two Business Days after the Borrower has
received notice of such Drawing, then, in either such case, such reimbursement shall instead be
made in U.S. Dollars and in immediately available funds (with the amount of such reimbursement to
be calculated as provided in Section 12.07(c)).
(b) The Borrower’s obligations under this Section 2.04 to reimburse each Letter of Credit
Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) issued by it
shall be absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower or any other Person may have or have had
against any Lender (including in its capacity as a Letter of Credit Issuer or as a Participant),
including, without limitation, any defense based upon the failure of any drawing under a Letter of
Credit (each, a “Drawing”) to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such Drawing;
provided that the Borrower shall not be obligated to reimburse the respective Letter of
Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross negligence as
determined by a court of competent jurisdiction on the part of such Letter of Credit Issuer.
2.05 Increased Costs. If after the Fifth Restatement Effective Date, the adoption of
any applicable law, rule or regulation, or any change therein, or any change in the interpretation
or administration thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or actual compliance by any Letter of Credit
Issuer or any Participant with any request or directive made or adopted after the Fifth Restatement
Effective Date (whether or not having the force of law), by any such authority, central bank or
comparable agency shall either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by such Letter of Credit Issuer,
or such Participant’s participation therein, or (ii) impose on any Letter of Credit Issuer or any
Participant any other conditions affecting its obligations under this Agreement in respect of
Letters of Credit or participations therein or any Letter of Credit or such Participant’s
participation therein; and the result of any of the foregoing is to increase the cost to such
Letter of Credit Issuer or such Participant of issuing, maintaining or participating in any Letter
of Credit, or to reduce the amount of any sum received or receivable by such Letter of Credit
Issuer or such Participant hereunder in respect of Letters of Credit or participations therein,
then, upon demand to the Borrower by such Letter of Credit Issuer or such Participant, as the case
may be (a copy of which notice shall be sent by such Letter of Credit Issuer or such Participant to
the Administrative Agent), the Borrower shall pay to such Letter of Credit Issuer or such
Participant such additional amount or amounts as will compensate such Letter of Credit Issuer or
such Participant for such increased cost or reduction. A certificate submitted to the Borrower by
such Letter of Credit Issuer or such Participant, as the case may be (a copy of which certificate
shall be sent by such Letter of Credit Issuer or such Participant to the Administrative Agent),
setting forth in reasonable detail the basis for the determination of such additional amount or
amounts necessary to compensate such Letter of Credit Issuer or such Participant as aforesaid shall
be conclusive and binding on the Borrower absent manifest error, although the failure to deliver
any such certificate shall not, subject to Section 1.15, release or
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diminish any of the Borrower’s
obligations to pay additional amounts pursuant to this Section 2.05 upon receipt of such
certificate.
2.06 Indemnification; Nature of Letter of Credit Issuers’ Duties. (a) In addition to
its other obligations under this Section 2, the Borrower hereby agrees to protect, indemnify, pay
and save each of the Letter of Credit Issuers harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’
fees but excluding those taxes excluded from the definition of Taxes in Section 4.04) that any such
Letter of Credit Issuer may incur or be subject to as a consequence, direct or indirect, of (i) the
issuance of any Letter of Credit or (ii) the failure of any Letter of Credit Issuer to honor a
drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or Governmental Authority (all such acts or
omissions, herein called “Government Acts”).
(b) As between the Borrower and the Letter of Credit Issuers, the Borrower shall assume all
risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. Except
as expressly provided in Section 2.06(e), the Letter of Credit Issuers shall not be responsible:
(i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and issuance of any
Letter of Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of a Letter of Credit
to comply fully with conditions required in order to draw upon a Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (v) for errors in interpretation
of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under a Letter of Credit or of the proceeds thereof; and (vii)
for any consequences arising from causes beyond the control of the Letter of Credit Issuers,
including, without limitation, any Government Acts. None of the above shall affect, impair, or
prevent the vesting of any of the Letter of Credit Issuers’ rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the specific provisions hereinabove
set forth, any action taken or omitted by any Letter of Credit Issuer, under or in connection with
any Letter of Credit or the related certificates, if taken or omitted in good faith, shall not put
such Letter of Credit Issuer under any resulting liability to the Borrower. It is the intention of
the parties that this Agreement shall be construed and applied to protect and indemnify the Letter
of Credit Issuers against any and all risks involved in the issuance of the Letters of Credit
arising from any present or future Government Acts. The Letter of Credit Issuers shall not, in any
way, be liable for any failure by the Letter of Credit Issuers or anyone else to pay any Drawing
under any Letter of Credit as a result of any Government Acts or any other cause beyond the control
of the Letter of Credit Issuers.
(d) Nothing in this Section 2.06 is intended to limit the reimbursement obligation of the
Borrower contained in Section 2.04 hereof. The obligations of the Borrower under this Section 2.06
shall survive the termination of this Agreement. No act or omission of
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any current or prior
beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Letter of
Credit Issuers to enforce any right, power or benefit under this Agreement.
(e) Notwithstanding anything to the contrary contained in this Section 2.06, (i) the Borrower
shall have no obligation to indemnify any Letter of Credit Issuer in respect of any liability
incurred by such Letter of Credit Issuer arising solely out of the gross negligence or willful
misconduct of such Letter of Credit Issuer (as determined by a court of competent jurisdiction in a
final and non-appealable decision) and (ii) the Borrower shall have a claim against any Letter of
Credit Issuer and such Letter of Credit Issuer shall be liable to the Borrower to the extent, but
only to the extent, of any direct, as opposed to consequential, damages suffered by the Borrower
which the Borrower proves were caused by (x) such Letter of Credit Issuer’s willful misconduct or
gross negligence (as determined by a court of competent jurisdiction in a final and non-appealable
decision) in determining whether the documents presented under its Letter of Credit complied with
the terms of such Letter of Credit or (y) such Letter of Credit Issuer’s willful or grossly
negligent failure to pay under its Letter of Credit after presentation to it of a drawing
certificate and any other documents strictly complying with the terms and conditions of such Letter
of Credit (as determined by a court of competent jurisdiction in a final and non-appealable
decision).
SECTION 3. Fees; Commitments.
3.01 Fees. (a) The Borrower agrees to pay the Administrative Agent for the account
of each Non-Defaulting RL Lender a commitment fee (the “Commitment Fee”) for the period
from and including the Fifth Restatement Effective Date to but not including the Final RL Maturity
Date or, if earlier, the date upon which the Total Revolving Loan Commitment has been terminated,
computed for each day at a rate per annum equal to the Applicable Margin for such day multiplied by
the Unutilized Revolving Loan Commitment of such Non-Defaulting RL Lender as in effect from time to
time. Such Commitment Fee shall be due and payable quarterly in arrears on each Quarterly Payment
Date and on the date upon which the Total Revolving Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for the account of the RL Lenders
pro rata on the basis of their respective RL Percentages, a fee in respect of each
Letter of Credit (the “Letter of Credit Fee”), computed for each day at a rate per annum
equal to the Applicable Margin for Revolving Loans maintained as Eurodollar Loans for such day
multiplied by the then Stated Amount of such Letter of Credit. Such Letter of Credit Fees shall be
due and payable quarterly in arrears on each Quarterly Payment Date and on the date upon which the
Total Revolving Loan Commitment is terminated.
(c) The Borrower agrees to pay to the Administrative Agent for the account of each Letter of
Credit Issuer a fee in respect of each Letter of Credit issued by it (the “Facing Fee”)
computed for each day at a rate per annum equal to 0.25% (or such lesser percentage as may be
agreed by the Borrower and the respective Letter of Credit Issuer in any given case) multiplied by
the average daily Stated Amount of such Letter of Credit. Such Facing Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the date upon which the Total
Revolving Loan Commitment is terminated.
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(c) The Borrower hereby agrees to pay directly to each Letter of Credit Issuer upon each
issuance of, drawing under, and/or amendment of, a Letter of Credit issued by such Letter of Credit
Issuer such amount as shall at the time of such issuance, drawing or amendment be the
administrative charge which such Letter of Credit Issuer is customarily charging for issuances of,
drawings under or amendments of, letters of credit issued by it.
(d) The Borrower shall pay to the Administrative Agent for the account of each Agent and each
other Lender the fees specified in the accepted commitment letter, or related fee letter, executed
by such Agent or such Lender, as the case may be, when and as due.
(e) All computations of Fees shall be made in accordance with Section 12.07(b).
3.02 Voluntary Reduction of Revolving Loan Commitments
. Upon at least three Business Days’ prior written notice (or telephonic notice confirmed in
writing) to the Administrative Agent at the Administrative Agent’s Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the
right, without premium or penalty, (i) to terminate Revolving Loan Commitments of the RL Lenders,
in part or in whole, in an amount equal to the Total Unutilized Revolving Loan Commitment at such
time (or, to the extent that at such time there are no Revolving Loans or Swingline Loans
outstanding and no Letter of Credit Outstandings, to terminate all Revolving Loan Commitments, in
full), provided that (x) any such termination shall apply to proportionately and permanently reduce
the Revolving Loan Commitment of each of the RL Lenders, (y) any partial reduction pursuant to this
Section 3.02(i) shall be in the amount of at least $10,000,000 and (z) no reduction pursuant to
this Section 3.02(i) shall be made if such reduction would cause the aggregate amount of the
Swingline Commitments to exceed the Total Revolving Loan Commitment, (ii) to terminate the
Swingline Commitments of the Swingline Lenders, in part or in whole, in an amount equal to the
Total Unutilized Swingline Commitment at such time (or, to the extent that at such time there are
no Swingline Loans outstanding, to terminate all Swingline Commitments, in full), provided that (x)
any such termination shall apply to proportionately and permanently reduce the Swingline Commitment
of each of the Swingline Lenders and (y) any partial reduction pursuant to this Section 3.02(ii)
shall be in the amount of at least $1,000,000, and (iii) at any time within the 30 days prior to
the RL Maturity Date of any Non-Continuing Lender and so long as no Event of Default then exists,
to terminate the Commitments of such Non-Continuing Lender, provided that (x) all Loans, together
with unpaid accrued interest thereon, of such Non-Continuing Lender are repaid in full and (y)
after giving effect to such termination and repayment, the sum of the aggregate principal amount of
all outstanding Loans and the Letter of Credit Outstandings does not exceed the Total Revolving
Loan Commitment.
3.03 Termination of Commitments. (a) The Total Revolving Loan Commitment shall
terminate on the Final RL Maturity Date.
(b) The Swingline Commitment of each Swingline Lender shall terminate on the Swingline
Maturity Date of such Swingline Lender.
(c) The Revolving Loan Commitment of each RL Lender shall terminate in its entirety on such RL
Lender’s RL Maturity Date.
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SECTION 4. Payments.
4.01 Voluntary Prepayments. The Borrower shall have the right to prepay Loans of a
given Tranche in whole or in part from time to time on the following terms and conditions: (i) the
Borrower shall give the Administrative Agent at the Administrative Agent’s Office written notice
(or telephonic notice promptly confirmed in writing) of its intent to make such prepayment, whether
such Loans are Revolving Loans or Swingline Loans, the amount of such prepayment and (in the case
of Eurodollar Loans) the specific Borrowing(s) pursuant to which made, which notice shall be
given by the Borrower no later than (x) in the case of Reference Rate Loans (other than Swingline
Loans), 11:00 A.M. (New York time) one Business Day prior to, (y) in the case of Eurodollar Loans,
11:00 A.M. (New York time) three Business Days prior to, and (z) in the case of Swingline Loans,
11:00 A.M. (New York time) on, the date of such prepayment and shall promptly be transmitted by the
Administrative Agent to each of the relevant Lenders entitled thereto; (ii) each partial prepayment
of any Borrowing shall be in an aggregate principal amount of at least $1,000,000, provided
that no partial prepayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount less than the applicable Minimum
Borrowing Amount for Eurodollar Loans; and (iii) each prepayment in respect of any Loans of a given
Tranche made pursuant to a given Borrowing shall be applied pro rata among such
Loans, provided that (x) at the Borrower’s election in connection with any prepayment
pursuant to this Section 4.01, such prepayment shall not be applied to any Revolving Loan of a
Defaulting Lender at any time when the aggregate amount of Revolving Loans of any Non-Defaulting
Lender exceeds such Non-Defaulting Lender’s RL Percentage of all Revolving Loans then outstanding
and (y) the Borrower may repay the Revolving Loans and Swingline Loans of a Non-Continuing Lender
in connection with the termination of the Commitments of such Non-Continuing Lender in accordance
with the requirements of clause (iii) of Section 3.02 without any accompanying repayment of the
Revolving Loans or Swingline Loans, as the case may be, of the other Lenders, so long as all
amounts, if any, due and owing to such Lender (and any other Lenders) pursuant to Section 1.11 are
paid at such time.
4.02 Mandatory Prepayments. (a) If on any date the sum of the outstanding principal
amount of all Revolving Loans and Swingline Loans and the aggregate amount of Letter of Credit
Outstandings (all the foregoing, collectively, the “Aggregate RL Outstandings”) exceeds the
Total Revolving Loan Commitment as then in effect, the Borrower shall repay on such date the
principal of Swingline Loans and, after Swingline Loans have been paid in full, Revolving Loans, in
an amount equal to such excess. If, after giving effect to the prepayment of all outstanding
Revolving Loans and Swingline Loans, the Aggregate RL Outstandings exceed the Total Revolving Loan
Commitment then in effect, the Borrower shall pay to the Administrative Agent an amount in cash
equal to such excess and the Administrative Agent shall hold such payment as security for the
Obligations of the Borrower hereunder (including, without limitation, obligations in respect of
Letter of Credit Outstandings) pursuant to a cash collateral agreement to be entered into in form
and substance reasonably satisfactory to the Administrative Agent (which shall permit certain
investments in Marketable Investments reasonably satisfactory to the Administrative Agent, until
the proceeds are applied to the secured obligations).
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(b) In addition, the Borrower shall repay (i) to each RL Lender on such RL Lender’s RL
Maturity Date, the outstanding Revolving Loans of such RL Lender on such date and (ii) to each
Swingline Lender on such Swingline Lender’s Swingline Maturity Date, the outstanding Swingline
Loans of such Swingline Lender on such date.
(c) With respect to each prepayment of Loans required by this Section 4.02, the Borrower may
designate the Types of Loans of the respective Tranche which are to be
prepaid and, in the case of Eurodollar Loans, the specific Borrowing(s) of the respective
Tranche pursuant to which made; provided that: (i) if any prepayment of Eurodollar Loans
made pursuant to a single Borrowing under a given Tranche shall reduce the outstanding Eurodollar
Loans made pursuant to such Borrowing to an amount less than the applicable Minimum Borrowing
Amount for such Eurodollar Loans, such Borrowing shall immediately be converted into a Borrowing of
Reference Rate Loans under such Tranche; and (ii) each prepayment of any Tranche of Loans made
pursuant to a Borrowing shall be applied pro rata among such Tranche of Loans. In
the absence of a designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its sole discretion with
a view, but no obligation, to minimize breakage costs owing under Section 1.11.
4.03 Method and Place of Payment. (a) Except as otherwise specifically provided
herein, all payments under this Agreement shall be made to the Administrative Agent for the ratable
account of the Lenders entitled thereto, not later than 1:00 P.M. (New York time) on the date when
due and shall be made in immediately available funds and in lawful money of the United States of
America at the Administrative Agent’s Office, it being understood that written, telex or facsimile
notice by the Borrower to the Administrative Agent to make a payment from the funds in the
Borrower’s account at the Administrative Agent’s Office shall constitute the making of such payment
to the extent of such funds held in such account. The Administrative Agent will thereafter cause
to be distributed on the same day (if payment was actually received by the Administrative Agent
prior to 2:00 P.M. (New York time) on such day) like funds relating to the payment of principal or
interest or Fees ratably to the Lenders entitled thereto. If and to the extent that any such
distribution shall not be so made by the Administrative Agent in full on the same day (if payment
was actually received by the Administrative Agent prior to 2:00 P.M. (New York time) on such day),
the Administrative Agent shall pay to each Lender its ratable amount thereof and each such Lender
shall be entitled to receive from the Administrative Agent, upon demand, interest on such amount at
the overnight Federal Funds Rate for each day from the date such amount is paid to the
Administrative Agent until the date the Administrative Agent pays such amount to such Lender.
(b) Any payments under this Agreement which are made later than 1:00 P.M. (New York time)
shall be deemed to have been made on the next succeeding Business Day. Whenever any payment to be
made hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect immediately prior
to such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder will be made
without setoff, counterclaim or other defense. The Borrower will pay, prior to the date on which
penalties attach thereto, all present and future income, stamp and other taxes,
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levies, or costs
and charges whatsoever imposed, assessed, levied or collected on or in respect of a Loan and/or the
recording, registration, notarization or other formalization thereof and/or any payments of
principal, interest or other amounts made on or in respect of a Loan (all such taxes, levies, costs
and charges being herein collectively called “Taxes”; provided that Taxes
shall not include taxes imposed on or measured by the overall net income of that Lender (or any
alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income) by
the United States of America or any political subdivision or taxing authority thereof or therein or
taxes on or measured by the overall net income (or any alternative tax imposed generally by any
relevant jurisdiction in lieu of a tax on net income) of that Lender by any foreign country or
subdivision thereof pursuant to the laws of which such Lender is organized or in which the
principal office or applicable lending office of such Lender is located). The Borrower shall also
pay such additional amounts equal to increases in taxes payable by that Lender described in the
foregoing proviso which increases are attributable to payments made by the Borrower described in
the immediately preceding sentence of this Section. Promptly after the date on which payment of
any such Tax is due pursuant to applicable law, the Borrower will, at the request of that Lender,
furnish to that Lender evidence, in form and substance satisfactory to that Lender, that the
Borrower has met its obligation under this Section 4.04. The Borrower will indemnify each Lender
against, and reimburse each Lender on demand for, any Taxes, as determined by that Lender in its
good faith and reasonable discretion. Such Lender shall provide the Borrower with appropriate
receipts for any payments or reimbursements made by the Borrower pursuant to this Section 4.04.
(b) Each Lender which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for United States federal income tax purposes agrees to provide to the
Borrower on or prior to the Fifth Restatement Effective Date, or in the case of a Lender that is an
assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or Section
12.04 (unless the respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer and such Lender is in compliance with the provisions of this Section
4.04(b)), on the date of such assignment or transfer to such Lender, (i) two accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a
complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s
entitlement to a complete exemption from United States withholding tax with respect to payments to
be made under this Agreement or any Note or (ii) if the Lender is not a “bank” within the meaning
of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI
or W-8BEN (with respect to a complete exemption under an income tax treaty) pursuant to clause (i)
above, (x) a certificate substantially in the form of Exhibit J (any such certificate, a
“Section 4.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies
of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or
successor form) certifying to such Lender’s entitlement as of such date to a complete exemption
from United States withholding tax with respect to payments of interest to be made under this
Agreement or under any Note. Each Lender that is a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for Federal income tax purposes, but that is not a corporation
(as such term is defined in Section 7701(a)(3) of the Code) for such purposes, agrees to provide to
the Borrower on or prior to the Fifth Restatement Effective Date, or in the case of a Lender that
is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or
Section 12.04 (unless the respective Lender was already a Lender hereunder immediately prior to
such assignment or transfer and such Lender is in
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compliance with the provisions of this Section
4.04(b)), on the date of such assignment to such Lender, two accurate and complete original signed
copies of Internal Revenue Service Form W-9 (or successor form). In addition, each such Lender
agrees that from time to time after the Fifth Restatement Effective Date, when a lapse in time or
change in circumstances renders the
previous certification obsolete or inaccurate in any material respect, it will deliver to the
Borrower two new accurate and complete original signed copies of Internal Revenue Service Form
W-8ECI or W-8BEN (with respect to a claim for benefits of an income tax treaty) or Form W-8BEN
(with respect to the portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the
case may be, and such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United States withholding
tax with respect to payments under this Agreement or any Note, or it shall immediately notify the
Borrower and the Administrative Agent of its inability to deliver any such form. Notwithstanding
anything to the contrary contained in Section 4.04(a), (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or other similar taxes imposed
by the United States (or any political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any Lender which is not a
United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States
federal income tax purposes and which has not provided to the Borrower such forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) to pay a Lender in respect of income or similar taxes imposed by the
United States or any additional amounts with respect thereto if such Lender has not provided to the
Borrower the Internal Revenue Service forms required to be provided to the Borrower pursuant to
this Section 4.04(b). Notwithstanding anything to the contrary contained in the preceding sentence
or elsewhere in this Section 4.04, the Borrower agrees to pay additional amounts and to indemnify
each Lender in the manner set forth in Section 4.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld
by it as described in the immediately preceding sentence as a result of any changes after the Fifth
Restatement Effective Date in any applicable law, treaty, governmental rule, regulation, guideline
or order, or in the interpretation thereof, relating to the deducting or withholding of income or
similar taxes.
(c) If the Borrower pays any additional amount under this Section 4.04 to a Lender and such
Lender determines in its sole discretion that it has actually received or realized in connection
therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect
to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender
shall pay to the Borrower an amount that the Lender shall, in its sole discretion, determine is
equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence
of such Tax Benefit; provided, however, that (i) any Lender may determine, in its
sole discretion consistent with the policies of such Lender whether to seek a Tax Benefit; (ii) any
Taxes that are imposed on a Lender as a result of a disallowance or reduction (including through
the expiration of any tax credit carryover or carryback of such Lender that otherwise would not
have expired) of any Tax Benefit with respect to which such Lender has made a payment to the
Borrower pursuant to this Section 4.04(c) shall be treated as a Tax for which the Borrower is
obligated to indemnify such Lender pursuant to this Section 4.04 without any exclusions or
defenses; (iii) subject to Section 12.15, nothing in this Section 4.04(c) shall require the Lender
to disclose any confidential information to the Borrower (including, without limitation, its tax
returns); and (iv) no Lender shall be required to pay any amounts pursuant to this Section 4.04(c)
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at any time when a Default or Event of Default exists. If in the reasonable opinion of the
Borrower, any amount has been paid to, by or on behalf of any Lender pursuant to this Section 4.04
with respect to Taxes which are not correctly or legally asserted, such Lender will (subject,
however, to the immediately succeeding proviso and the limitations described in the immediately
preceding sentence) cooperate in good faith with the Borrower in identifying any purported Tax
Benefit, provided that the rendering of any such cooperation by such Lender would not cause
such Lender to incur any out of pocket expense (which is not otherwise paid in full by Borrower
prior to or at the time such expense is incurred).
SECTION 5. Conditions Precedent.
5.01 Conditions Precedent to the Fifth Restatement Effective Date. This Agreement
shall become effective on the date (the “Fifth Restatement Effective Date”) when each of
the following conditions are first satisfied:
A. Execution; Notes. The Fifth Restatement Execution Date shall have occurred
as provided in Section 12.10 and there shall have been delivered to the Administrative Agent
for the account of each Lender requesting same the appropriate Note executed by the Borrower
in the amount, maturity and as otherwise provided herein.
B. Officer’s Certificate. The Administrative Agent shall have received
certificates, dated the Fifth Restatement Effective Date and signed by an appropriate
officer of the Borrower, stating that all of the applicable conditions set forth in Sections
5.01F, G, H, P and R and 5.02 have been satisfied as of such date.
C. Opinions of Counsel. The Administrative Agent shall have received an
opinion, or opinions, in form and substance satisfactory to each Lead Agent, addressed to
each of the Lenders and dated the Fifth Restatement Effective Date, from (i) XxXxxx X. Xxxxx
III, Senior Vice President, Deputy General Counsel and Secretary of the Borrower, which
opinion shall cover the matters contained in Exhibit C-1 hereto, (ii) Xxxxxx Xxxxxxx
Xxxxxxxxx & Xxxx, PLLC, special counsel to the Credit Parties, which opinion shall cover the
matters contained in Exhibit C-2 hereto, and (iii) Xxxxxxxxxx Xxxxxxxx LLP, special counsel
to the Credit Parties, which opinion shall cover the matters contained in Exhibit C-3
hereto, together with such other opinions, if any, covering such matters as the Lead Agents
shall reasonably request, from counsel, and in form and substance, reasonably satisfactory
to the Lead Agents.
D. Company Proceedings. On the Fifth Restatement Effective Date, all Company
and legal proceedings and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Credit Documents shall be reasonably
satisfactory in form and substance to each Lead Agent, and the Administrative Agent shall
have received all information and copies of all certificates, documents and papers,
including records of Company proceedings and governmental approvals, if any, which any Lead
Agent reasonably may have requested in connection therewith, such documents and papers where
appropriate to be certified by proper Company or governmental authorities.
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E. Organizational Documentation, etc. The Lenders shall have received copies
of the Certificate of Incorporation and By-Laws or other equivalent organizational
documents of each Credit Party, certified on or recently prior to the Fifth Restatement
Effective Date as true and complete by an appropriate Company officer or Governmental
Authority.
F. Consummation of Transaction. (a) On or prior to the Fifth Restatement
Effective Date, (i) the Borrower shall have received cash proceeds of at least
$1,550,000,000 (calculated before original issue discount, underwriting discounts and
commissions) from the issuance by it of a like principal amount of 2007 New Senior Notes,
(ii) the issuance of the 2007 New Senior Notes shall have been consummated in accordance
with the terms and conditions of the 2007 New Senior Notes Documents and all applicable law
and (iii) the Borrower shall have applied (x) all cash proceeds received in accordance with
clause (i) above and (y) cash on hand in an aggregate amount of $10,186,493.49 to the
repayment in full of Term Loans (as defined in the Fourth Amended and Restated Credit
Agreement).
(b) On the Fifth Restatement Effective Date, (i) the Administrative Agent shall have
received true and correct copies of all 2007 New Senior Notes Documents, in each case
certified as such by an Authorized Officer of the Borrower and (ii) all such Documents shall
be in full force and effect.
(c) On the Fifth Restatement Effective Date, (i) no litigation shall be pending or
threatened in writing with respect to this Agreement, any other Credit Documents or the
Transaction and (ii) except as disclosed in public filings of the Borrower, since December
31, 2006, no litigation shall be pending or threatened in writing which has had, or could
reasonably be expected to have, a Material Adverse Effect.
(d) On the Fifth Restatement Effective Date, after giving effect to the consummation of
the Transaction, the Borrower and its Subsidiaries shall have no outstanding preferred
equity or Indebtedness, except for (i) the 2007 New Senior Notes, (ii) the Existing Senior
Notes, (iii) the Initial New Senior Notes, (iv) Indebtedness under the Credit Documents, (v)
Preferred Equity Interests of the Borrower owned by RJRTH, and (vi) the other Existing Debt.
G. Adverse Change. No event, development or circumstance shall have occurred
since December 31, 2006 that any Lead Arranger shall determine has had, or could reasonably
be expected to have, a Material Adverse Effect.
H. Approvals. On or prior to the Fifth Restatement Effective Date, (i) all
material governmental, regulatory and third party approvals necessary to consummate the
financing transactions contemplated by the Documents and for the continuing operations of
the Borrower and its Subsidiaries taken as a whole, shall have been obtained and remain in
full force and effect and (ii) all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority that could reasonably be
expected to restrain, prevent or otherwise impose materially adverse
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conditions upon the
consummation of the Transaction, the making of the Loans and the transactions contemplated
by the Documents or otherwise referred to herein or therein.
I. Unaudited Condensed Combined Financial Statements. The Lead Agents shall
have received the audited (incorporated by reference from filings with the SEC) and
unaudited interim (quarterly) consolidated financial statements of the Borrower (which shall
have been reviewed by the Borrower’s independent registered public accounting firm as
provided in Statement on Auditing Standards No. 100) and each Subsidiary Guarantor, to the
extent any such financial statements would be required by (including by means of
incorporation by reference), and meeting the requirements of, Regulation S-X for a Form S-3
registration statement under the Securities Act of 1933, as amended, relating to the
offering of debt securities of the Borrower and guarantees thereof by each of the Subsidiary
Guarantors.
J. Subsidiary Guaranty. Each Subsidiary Guarantor shall have duly authorized,
executed and delivered an amended and restated Subsidiary Guaranty substantially in the form
of Exhibit D hereto (as so amended and restated and as the same may be further amended,
restated, modified and/or supplemented from time to time in accordance with the terms hereof
and thereof, the “Subsidiary Guaranty”), and the Subsidiary Guaranty shall be in
full force and effect.
K. Intercompany Subordination Agreement. The Borrower and each of its
Subsidiaries (other than an Insignificant Subsidiary) shall have duly authorized, executed
and delivered an amended and restated Subordination Agreement substantially in the form of
Exhibit G hereto (as so amended and restated and as the same may be further amended,
restated, modified and/or supplemented from time to time in accordance with the terms hereof
and thereof, the “Intercompany Subordination Agreement”), and the Intercompany
Subordination Agreement shall be in full force and effect.
L. Pledge Agreement. The Borrower and each Subsidiary Guarantor shall have
duly authorized, executed and delivered an amended and restated Pledge Agreement in the form
of Exhibit H (as so amended and restated and as the same may be further amended, restated,
modified and/or supplemented from time to time in accordance with the terms hereof and
thereof, the “Pledge Agreement”), and the following other documents shall be, or
shall previously have been, delivered to the Collateral Agent, as Pledgee thereunder:
(i) all Collateral referred to in the Pledge Agreement then owned by such Credit
Party (including all outstanding shares of Borrower Preferred Stock), (x) endorsed in
blank, or accompanied by executed and undated endorsements for transfer, in the case
of promissory notes constituting Collateral thereunder and (y) together with executed
and undated endorsements for transfer, in the case of Equity Interests constituting
certificated Collateral thereunder;
(ii) proper Financing Statements (Form UCC-1) and/or Financing Statement
amendments (Form UCC-3) fully executed for filing under the UCC or other appropriate
filing offices of each jurisdiction as may be necessary or, in the
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opinion of the
Collateral Agent, desirable to perfect the security interests purported to be created
by the Pledge Agreement; and
(iii) evidence of the completion of all other recordings and filings of, or with
respect to, the Pledge Agreement as may be necessary or, in the reasonable opinion of
the Collateral Agent, desirable to perfect the security interests intended to be
created by the Pledge Agreement;
and the Pledge Agreement shall be in full force and effect.
M. Security Agreement. The Borrower and each Subsidiary Guarantor shall have
duly authorized, executed and delivered an amended and restated Security Agreement in the
form of Exhibit I (as so amended and restated and as the same may be further amended,
restated, modified and/or supplemented from time to time in accordance with the terms
thereof and hereof, the “Security Agreement”) covering all of the Collateral
referred to therein, and the following other documents shall be, or shall previously have
been, delivered to the Collateral Agent:
(i) executed copies of financing statements (Form UCC-1) and/or financing
statement amendments (Form UCC-3) (or appropriate local equivalent) in appropriate
form for filing under the UCC or appropriate local equivalent of each jurisdiction as
may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to
perfect the security interests purported to be created by the Security Agreement; and
(ii) evidence that all other actions necessary or, in the reasonable opinion of
the Collateral Agent, desirable, to perfect the security interests purported to be
created by the Security Agreement have been taken;
and the Security Agreement shall be in full force and effect.
N. [RESERVED].
O. Insurance Certificates. On or before the Fifth Restatement Effective Date,
the Administrative Agent shall have received evidence of insurance complying with the
requirements of Section 7.03 for the business and properties of the Borrower and its
Subsidiaries, in scope, form and substance reasonably satisfactory to the Lead Agents and
naming the Collateral Agent as an additional insured and/or loss payee, and stating that
such insurance shall not be terminated without at least 30 days’ prior written notice by the
insurer to the Collateral Agent.
P. Fourth Amended and Restated Credit Agreement. On the Fifth Restatement
Effective Date (and, except in the case of clause (v) below, concurrently with the initial
incurrence of Loans on such date), (i) all Loans (if any) outstanding pursuant to (and as
defined in) the Fourth Amended and Restated Credit Agreement shall have been repaid in full
(and the Borrower shall have paid all breakage costs and similar costs resulting therefrom
in accordance with the provisions of Section 1.11 of the Fourth Amended and Restated Credit
Agreement), (ii) all outstanding Letters of Credit under, and as defined in,
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the Fourth
Amended and Restated Credit Agreement shall have been incorporated as Letters of Credit
hereunder pursuant to Section 2.01(c), (iii) all accrued interest on all outstanding
extensions of credit, and all accrued fees, pursuant to the Fourth Amended
and Restated Credit Agreement shall be paid in full on, and through, the Fifth
Restatement Effective Date (whether or not same would otherwise be then due and payable
pursuant to the Fourth Amended and Restated Credit Agreement), (iv) all other amounts then
due and owing to each Lender under, and as defined in, the Fourth Amended and Restated
Credit Agreement pursuant to the Fourth Amended and Restated Credit Agreement shall have
been paid in full and (v) immediately prior to giving effect thereto, no Default or Event of
Default under, and as defined in, the Fourth Amended and Restated Credit Agreement shall
have occurred and be continuing.
Q. Solvency Certificate. On the Fifth Restatement Effective Date, the
Administrative Agent shall have received a solvency certificate from the chief accounting
officer of the Borrower in the form of Exhibit F hereto.
R. Fees, etc. On the Fifth Restatement Effective Date, the Borrower shall
have paid to each Agent and each Lender all costs, fees and expenses payable to the Agents
or the Lenders, to the extent then due.
5.02 Conditions Precedent to All Credit Events. The obligation of each Lender to make
any Loans (other than pursuant to a Mandatory Borrowing) and the obligation of each Letter of
Credit Issuer to issue or extend Letters of Credit, is subject, at the time of the making of each
such Loan and/or the issuance or extension of each such Letter of Credit (and after giving effect
thereto), to the satisfaction of the following conditions at such time: (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties contained herein or in the
other Credit Documents shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the date of such Credit
Event, unless such representation and warranty expressly indicates that it is being made as of a
specified date, in which case such representation or warranty shall be true and correct in all
material respects only as of such specified date.
The acceptance of the benefits of each Credit Event shall constitute a representation and
warranty by each Credit Party to each of the Lenders that all of the applicable conditions
specified above exist as of that time. All of the certificates, legal opinions and other documents
and papers referred to in Section 5.01, unless otherwise specified, shall be delivered to the
Administrative Agent at the Administrative Agent’s Office for the account of each of the Lenders
and shall be reasonably satisfactory in form and substance to each Lead Agent.
SECTION 6. Representations, Warranties and Agreements. In order to induce the
Lenders to enter into this Agreement, to make the Loans and issue or participate in Letters of
Credit as provided for herein, the Borrower makes the following representations and warranties to
and agreements with the Lenders, all of which shall survive the execution and delivery of this
Agreement and the making of the Loans and the issuance (or, in the case of Existing Letters of
Credit, deemed issuance) of the Letters of Credit (with (x) all such representations, warranties
and agreements being first made on the Fifth Restatement Effective Date and (y) the occurrence of
each Credit Event being deemed to
constitute a representation and warranty that the matters
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specified in this Section 6 are true
and correct in all material respects on and as of the date hereof and as of the date of each such
Credit Event, unless such representation and warranty expressly indicates that it is being made as
of any specific date, in which case such representation or warranty shall be true and correct in
all material respects only as of such specified date):
6.01 Status. Each Credit Party and each of its Material Subsidiaries (i) is a duly
organized and validly existing Company in good standing under the laws of the jurisdiction of its
organization and has the requisite Company power and authority to own its property and assets and
to transact the business in which it is engaged and (ii) is duly qualified and is authorized to do
business and is in good standing in all jurisdictions where it is required to be so qualified and
where the failure to be so qualified would have a Material Adverse Effect.
6.02 Power and Authority. Each Credit Party has the requisite Company power and
authority to execute, deliver and carry out the terms and provisions of the Documents to which it
is a party and has taken all necessary Company action to authorize the execution, delivery and
performance of the Documents to which it is a party. Each Credit Party has duly executed and
delivered each Document to which it is a party and each such Document constitutes the legal, valid
and binding obligation of such Credit Party enforceable in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditor’s rights generally or general principles of equity.
6.03 No Violation. Neither the execution, delivery and performance by any Credit
Party of the Documents to which it is a party nor compliance with the terms and provisions thereof,
nor the consummation of the transactions contemplated therein (i) will contravene any material
provision of any applicable law, statute, rule, regulation, order, writ, injunction or decree of
any Governmental Authority, (ii) will conflict or be inconsistent with or result in any breach of
any of the terms, covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any Lien (except for the
Liens created pursuant to the Security Documents) upon any of the property or assets of the
Borrower or any of its Subsidiaries pursuant to the terms of any material indenture, mortgage, deed
of trust, agreement or other instrument to which the Borrower or any of its Subsidiaries is a party
or by which it or any of its property or assets is bound or to which it may be subject (including,
without limitation, the New Senior Notes Documents) or (iii) will violate any provision of the
Certificate of Incorporation or By-Laws (or equivalent organizational documents) of the Borrower or
any of its Subsidiaries.
6.04 Litigation. Except as set forth on Annex IV, there are no actions, suits or
proceedings pending or threatened with respect to the Borrower or any of its Subsidiaries that
would reasonably be expected to have a Material Adverse Effect.
6.05 Use of Proceeds; Margin Regulations. (a) The proceeds of all Revolving Loans
and Swingline Loans shall be utilized by the Borrower for working capital and general corporate
purposes of the Borrower and/or its Subsidiaries (including, without limitation, the refinancing of
Indebtedness and the backing up of commercial paper issued by the Borrower).
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(b) Except as otherwise permitted by Section 8.05(b), (c), (d) and (f), no part of any Credit
Event (or the proceeds thereof) will be used to purchase or carry any Margin Stock or to extend
credit for the purpose of purchasing or carrying any Margin Stock. Neither the making of any Loan
nor the use of the proceeds thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
(c) The Fair Market Value of all Margin Stock owned by the Borrower and its Subsidiaries does
not exceed $50,000,000 (for such purposes, determined without regard to the Fair Market Value of
the shares of Excluded Joint Ventures held by the Borrower and its Subsidiaries, to the extent same
shall at any time constitute Margin Stock). At the time of each Credit Event, not more than 25% of
the value of the assets of the Borrower and its Subsidiaries taken as a whole will constitute
Margin Stock.
(d) Notwithstanding the foregoing provisions of this Section 6.05, no proceeds of any Loan
will be utilized to purchase any Margin Stock in a transaction, or as part of a series of
transactions, the result of which is the ownership by the Borrower and/or its Subsidiaries of 5% or
more of the capital stock of a corporation unless the Board of Directors of such corporation has
approved such transaction prior to any public announcement of the purchase, or the intent to
purchase, any such Margin Stock.
6.06 Governmental Approvals. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any Governmental
Authority, or any subdivision thereof, is required to authorize or is required in connection with
(i) the execution, delivery and performance of any Document or (ii) the legality, validity, binding
effect or enforceability of any Document, except for (x) those that have otherwise been obtained or
made on or prior to the Fifth Restatement Effective Date and which remain in full force and effect
on the Fifth Restatement Effective Date and (y) filings which are necessary to perfect the security
interests created under the Security Documents.
6.07 Investment Company Act. Neither the Borrower nor any of its Subsidiaries is an
“investment company” or a company “controlled” by an “investment company,” within the meaning of
the Investment Company Act of 1940, as amended.
6.08 True and Complete Disclosure
. All factual information (taken as a whole) heretofore or contemporaneously furnished by or
on behalf of the Credit Parties or any of their Subsidiaries in writing to any Agent or any Lender
for purposes of or in connection with this Agreement, the other Documents or any transaction
contemplated herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of such Persons in writing to any Lender will be, true and
accurate in all material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any material fact necessary to make such information (taken
as a whole) not misleading at such time in light of the circumstances under which such information
was provided. The projections and pro forma financial information contained in
such materials were based on good faith estimates and assumptions believed by such Persons to be
reasonable at the time made, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that
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actual results during the period or periods covered
by any such projections may differ from the projected results and such differences may be material.
6.09 Financial Condition; Financial Statements; Solvency. (a) The consolidated
balance sheets of the Borrower and its Subsidiaries, at December 31, 2004, at December 31, 2005 and
at December 31, 2006 and the related consolidated statements of income (loss), shareholders’ equity
and comprehensive income (loss) and cash flows for the fiscal years ended as of said dates, which
statements have been examined by KPMG LLP, independent registered public accountants, who delivered
an unqualified opinion in respect of the financial statements examined by them, copies of which
have heretofore been furnished to the Administrative Agent (on behalf of each Lender), present
fairly in all material respects the consolidated financial position of the Borrower at the dates of
said statements and the results of operations for the periods covered thereby in conformity with
GAAP.
(b) Reserved.
(c) Since December 31, 2006 (after giving effect to the Transaction as if same had occurred
immediately prior to such date), nothing has occurred which has had a Material Adverse Effect.
(d) On and as of the date of each Credit Event, and after giving effect to the Transaction and
to all Indebtedness (including the Loans and the 2007 New Senior Notes) being incurred or assumed
and Liens created by the Credit Parties in connection therewith, (i) the sum of the assets, at a
fair valuation, of the Borrower (on a stand-alone basis) and of each Credit Party and its
Subsidiaries (taken as a whole) will exceed its or their respective debts, (ii) the Borrower (on a
stand-alone basis) and of each Credit Party and its Subsidiaries (taken as a whole) has or have not
incurred and does or do not intend to incur, and does or do not believe that it or they will incur,
debts beyond its or their respective ability to pay such debts as such debts mature, and (iii) the
Borrower (on a stand-alone basis) and of each Credit Party and its Subsidiaries (taken as a whole)
will have sufficient capital with which to conduct its or their respective businesses. For
purposes of this Section 6.09(d), “debt” means any liability on a claim, and
“claim” means (a) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured or (b) right to an equitable remedy for breach of performance if
such breach gives rise
to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured. The amount of
contingent liabilities at any time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
6.10 Tax Returns and Payments. Each of the Borrower and its Subsidiaries has timely
filed all federal income tax returns and all other material tax returns, domestic and foreign,
required to be filed by it (the “Returns”). The Returns accurately reflect in all material
respects all liability for taxes of the Borrower and its Subsidiaries as a whole for the periods
covered thereby. Each of the Borrower and each of its Subsidiaries have paid all material taxes
and assessments payable by them other than those contested in good faith and
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adequately disclosed
and for which adequate reserves have been established in accordance with GAAP.
6.11 Compliance with ERISA. Except to the extent that all events described in the
following clauses of this sentence and then in existence could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, each Plan is in substantial compliance with ERISA and
the Code; no Reportable Event has occurred with respect to any Plan; no Plan is insolvent or in
reorganization, no Plan has an Unfunded Current Liability, and no Plan has an accumulated or waived
funding deficiency or permitted decreases in its funding standard account within the meaning of
Section 412 of the Code; none of the Borrower, any Subsidiary or any ERISA Affiliate has incurred
any material liability to or on account of a Plan pursuant to Section 409, 502(i), 502(1), 515,
4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code; no proceedings
have been instituted to terminate any Plan; no condition exists which presents a material risk to
the Borrower or any Subsidiary of incurring a liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code. With respect to Plans that are multi-employer plans
(within the meaning of Section 3(37) of ERISA) and Plans which are not currently maintained or
contributed to by the Borrower, any Subsidiary or any ERISA Affiliate, the representations and
warranties in this Section are made to the knowledge of the Borrower.
6.12 Subsidiaries. Part A of Annex V hereto lists each Material Subsidiary of the
Borrower (and the direct and indirect ownership interest of the Borrower therein), in each case
existing on the Fifth Restatement Effective Date. All ownership percentages referred to in Part A
of Annex V are calculated without regard to directors’ or nominees’ qualifying shares.
6.13 Patents, etc. The Borrower and each of its Subsidiaries have obtained all
material patents, trademarks, servicemarks, trade names, copyrights, licenses and other rights,
free from burdensome restrictions, that are necessary for the operation of their respective
businesses as presently conducted and as proposed to be conducted.
6.14 Pollution and Other Regulations. The Borrower and each of its Subsidiaries are
in material compliance with all material laws and regulations relating to pollution and
environmental control, equal employment opportunity and employee safety in all domestic
jurisdictions in which the Borrower and each of its Subsidiaries is presently doing business, and
the Borrower will comply, and cause each of its Subsidiaries to comply, with all such laws and
regulations which may be imposed in the future in jurisdictions in which the Borrower or such
Subsidiary may then be doing business other than, in each case, those the non-compliance with which
would not reasonably be expected to have a Material Adverse Effect.
6.15 Properties. The Borrower and each of its Subsidiaries have good title to all
properties that are necessary for the operation of their respective businesses as presently
conducted and as proposed to be conducted, free and clear of all Liens, other than as permitted by
this Agreement. All Real Property owned by the Borrower or any of its Subsidiaries, and all
material leaseholds leased by the Borrower or any of its Subsidiaries, in each case as of the Fifth
Restatement Effective Date and after giving effect to the Transaction, and the nature of the
interests therein, are correctly set forth in Annex VIII.
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SECTION 7. Affirmative Covenants. The Borrower hereby covenants and agrees that on
the Fifth Restatement Effective Date and thereafter, for so long as this Agreement is in effect and
until the Commitments and each Letter of Credit have terminated and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder, are paid in full:
7.01 Information Covenants. The Borrower will furnish to the Administrative Agent
(for further delivery to each Lender):
(a) Annual Financial Statements. Within 100 days after the close of each
fiscal year of the Borrower, to the extent prepared to comply with SEC requirements, a copy
of the SEC Form 10-Ks filed by the Borrower with the SEC for such fiscal year, or, if no
such Form 10-K was so filed by the Borrower for such fiscal year, the consolidated balance
sheet of the Borrower and its Subsidiaries, as at the end of such fiscal year and the
related consolidated statements of income and of cash flows for such fiscal year, setting
forth comparative consolidated figures as of the end of and for the preceding fiscal year,
and examined by independent certified public accountants of recognized national standing
whose opinion shall not be qualified as to the scope of audit or as to the status of the
Borrower or any of its Subsidiaries as a going concern, together in any event with a
certificate of such accounting firm stating that in the course of its regular audit of the
business of the Borrower, which audit was conducted in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge of any Default or Event
of Default which has occurred and is continuing or, if in the opinion of
such accounting firm such a Default or Event of Default has occurred and is continuing,
a statement as to the nature thereof.
(b) Quarterly Financial Statements. As soon as available and in any event
within 55 days after the close of each of the first three quarterly accounting periods in
each fiscal year of the Borrower to the extent prepared to comply with SEC requirements, a
copy of the SEC Form 10-Qs filed by the Borrower with the SEC for each such quarterly
period, or, if no such Form 10-Q was so filed by the Borrower with respect to any such
quarterly period, the consolidated condensed balance sheet of the Borrower and its
Subsidiaries as at the end of such quarterly period and the related consolidated condensed
statements of income for such quarterly period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, and the related consolidated
condensed statement of cash flows for the elapsed portion of the fiscal year ended with the
last day of such quarterly period, and in each case setting forth comparative consolidated
figures for the related periods in the prior fiscal year or, in the case of such
consolidated condensed balance sheet, for the last day of the prior fiscal year, all of
which shall be certified by an Authorized Officer of the Borrower, subject to changes
resulting from audit and normal year-end adjustments.
(c) Officer’s Certificates. At the time of the delivery of the financial
statements provided for in Sections 7.01(a) and (b), a certificate of an Authorized Officer
of the Borrower to the effect that no Default or Event of Default exists or, if any Default
or Event of Default does exist, specifying the nature and extent thereof, which certificate
shall set forth the calculations required to establish whether the Borrower and its
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Subsidiaries were in compliance with the provisions of (x) Sections 8.07, 8.08 and 8.13 as
at the end of such fiscal period or year, as the case may be, and (y) if furnished in
connection with the delivery of the financial statements provided for in Section 7.01(a),
Sections 8.02(d), 8.02(k), 8.03(j), 8.03(v), 8.04(d), 8.04(e), 8.04(k), 8.04(l), 8.04(m),
8.04(o), 8.05(c), 8.05(d), 8.09(b), 8.09(e), 8.09(i), 8.09(j), 8.09(l) and 8.09(n) as at the
end of such fiscal year.
(d) Notice of Default or Litigation. Promptly, and in any event within five
Business Days after any senior financial or legal officer of the Borrower obtains knowledge
thereof, notice of (x) the occurrence of any event which constitutes a Default or Event of
Default, which notice shall specify the nature thereof, the period of existence thereof and
what action the Borrower and/or the relevant Subsidiary proposes to take with respect
thereto and (y) any litigation or governmental proceeding pending against or affecting the
Borrower or any of its Subsidiaries which has had, or could reasonably be expected to have,
a material adverse effect on the business, properties, assets, financial condition or
prospects of the Borrower and its Subsidiaries taken as a whole, the rights and remedies of
the Agents and the Lenders or the ability of any Credit Party to perform its obligations
hereunder or under any other Credit Document to which it is a party.
(e) Credit Rating Changes. Promptly after any senior financial or legal
officer of the Borrower obtains knowledge thereof, notice of any change in the Applicable
Facilities Credit Rating or the Applicable Corporate Credit Rating assigned by either Rating
Agency.
(f) Other Information. Promptly upon transmission thereof, copies of any
filings and registrations with, and reports to, the Securities and Exchange Commission or
any successor thereto (the “SEC”) by the Borrower or any of its Subsidiaries (other
than amendments to any registration statement (to the extent such registration statement, in
the form it becomes effective, is delivered to the Administrative Agent), exhibits to any
registration statement, any registration statements on Form S-8 and Forms 3, 4 and 5 and any
annual report on Form 11-K) and copies of all financial statements, proxy statements,
notices and reports that the Borrower or any of its Subsidiaries shall send to the holders
of any publicly issued debt of the Borrower and/or any of its Subsidiaries in their capacity
as such holders (in each case, to the extent not theretofore delivered to the Administrative
Agent pursuant to this Agreement) and, with reasonable promptness, such other information or
documents (financial or otherwise) as any Lead Agent on its own behalf or on behalf of the
Required Lenders may reasonably request from time to time.
7.02 Books, Records and Inspections. The Borrower will, and will cause each of its
Subsidiaries to, permit, upon reasonable notice to an Authorized Officer of the Borrower, officers
and designated representatives of any Lead Agent or the Required Lenders to visit and inspect any
of the properties or assets of the Borrower and any of its Subsidiaries in whomsoever’s possession,
and to examine the books of account of the Borrower and any of its Subsidiaries and discuss the
affairs, finances and accounts of the Borrower and of any of its Subsidiaries with, and be advised
as to the same by, its and their officers and independent accountants, all at such reasonable times
and intervals and to such reasonable extent as any Lead Agent or the Required Lenders may desire;
provided that, the Borrower and its Subsidiaries shall
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only be required to use their
commercially reasonably efforts to permit access to their respective assets not in the possession
of the Borrower or any Subsidiary; and provided further that, unless a Default or
Event of Default is in existence at the time of a given request for inspection or visit pursuant to
this Section 7.02 (in which case this proviso shall not be applicable to such inspection or visit),
the Borrower shall only be responsible for fees, costs and expenses relating to only one such visit
and inspection in each fiscal year of the Borrower.
7.03 Insurance. The Borrower will, and will cause each of its Subsidiaries to, at all
times maintain in full force and effect insurance in such amounts, covering such risks and
liabilities and with such deductibles or self-insured retentions as are in accordance with normal
industry practice.
7.04 Payment of Taxes. The Borrower will pay and discharge, and will cause each of
its Subsidiaries to pay and discharge, all Federal, state and other material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, in each case on a timely basis, and all material lawful claims which,
if unpaid, might become a Lien or charge upon any properties of the Borrower or any of its
Subsidiaries; provided that neither the Borrower nor any of its Subsidiaries shall be
required to pay any such tax,
assessment, charge, levy or claim which is being contested in good faith and by proper
proceedings if it has maintained adequate reserves (in the good faith judgment of the management of
the Borrower) with respect thereto in accordance with GAAP.
7.05 Consolidated Corporate Franchises. The Borrower will do, and will cause each
Subsidiary Guarantor and each of its Material Subsidiaries to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence, rights and authority;
provided that any transaction permitted by Section 8.02 will not constitute a breach of
this Section 7.05.
7.06 Compliance with Statutes, etc. The Borrower will, and will cause each Subsidiary
to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all Governmental Authorities in respect of the conduct of its business and the
ownership of its property (including applicable Environmental Laws) other than those the
non-compliance with which would not reasonably be expected to have a Material Adverse Effect.
7.07 ERISA. As soon as possible and, in any event, within 10 days after the Borrower
or any Subsidiary knows or has reason to know of the occurrence of any of the following, the
Borrower will deliver to the Administrative Agent a certificate of an Authorized Officer of the
Borrower setting forth details as to such occurrence and the action, if any, which the Borrower,
such Subsidiary or an ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Borrower, such Subsidiary, such ERISA
Affiliate, the PBGC or any other Governmental Authority, a Plan participant (other than notices
relating to an individual participant’s benefits) or the Plan administrator with respect thereto:
that a Reportable Event has occurred (except to the extent that the Borrower has previously
delivered to the Administrative Agent a certificate and notices (if any) concerning such event
pursuant to the next clause hereof), that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the
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advance reporting requirement of
PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof), that an
accumulated funding deficiency has been incurred or an application may be or has been made to the
Secretary of the Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period under Section 412 of
the Code with respect to a Plan, that a Plan which has an Unfunded Current Liability has been or
may be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA, that a
Plan has an Unfunded Current Liability giving rise to a lien under ERISA or the Code, that
proceedings may be or have been instituted to terminate a Plan which has an Unfunded Current
Liability, that a proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan, or that the Borrower, any Subsidiary or any ERISA Affiliate will
or may incur any liability (including any contingent or secondary liability) to or on account of
the termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA or with respect to a Plan under Section 4971 or 4975 of the Code or Section 409 or 502(i) or
502(l) of ERISA. Upon
request of the Administrative Agent or the Required Lenders, the Borrower will deliver to the
Administrative Agent a complete copy of the annual report (Form 5500) of each Plan required to be
filed with the Internal Revenue Service. In addition to any certificates or notices delivered to
the Administrative Agent pursuant to the first sentence hereof, copies of annual reports and any
material records, documents or other information required to be furnished to the PBGC or any other
Governmental Authority and any material notices received by the Borrower or any Subsidiary with
respect to any Plan shall be delivered to the Administrative Agent no later than 10 days after the
later of the date such notice has been filed with the Internal Revenue Service or the PBGC or any
other Governmental Authority, given to Plan participants (other than notices relating to an
individual participant’s benefits) or received by the Borrower or such Subsidiary.
7.08 Good Repair. The Borrower will, and will cause each of its Subsidiaries to,
ensure that its properties and equipment used or useful in its business in whomsoever’s possession
they may be, are kept in good repair, working order and condition, normal wear and tear excepted
and subject to the occurrence of casualty events, and that from time to time there are made in such
properties and equipment all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner customary for
companies in similar businesses.
7.09 End of Fiscal Years; Fiscal Quarters. The Borrower will, for financial reporting
purposes, cause (i) each of its fiscal years to end on December 31 of each year, (ii) each of its
fiscal quarters to end on March 31, June 30, September 30 and December 31 of each year and (iii)
each of the Subsidiaries to maintain the accounting periods maintained by such Subsidiary on the
Fifth Restatement Effective Date, consistent with the past practice and procedures of each such
Subsidiary; provided that any of the foregoing fiscal or reporting periods may be changed
if (x) the Borrower gives the Administrative Agent 30 days’ prior written notice of such proposed
change and (y) prior to effecting such change, the Borrower and the Lead Agents shall have agreed
upon adjustments, if any, to Sections 8.05, 8.07, 8.08 and 8.13 (and the definitions used therein)
the sole purpose of which shall be to give effect to the proposed change in fiscal or accounting
periods (it being understood and agreed that to the extent that the Borrower and the Lead Agents
cannot agree on appropriate adjustments to such Sections (or that no adjustments are necessary),
the proposed change may not be effected).
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7.10 Subsidiary Guaranty; Collateral. (a) No later than 15 days after the date on
which a Guaranty Event occurs after the Fifth Restatement Effective Date, each Material Subsidiary
not then a Subsidiary Guarantor shall (i) authorize the execution of, and execute and deliver to
the Administrative Agent on behalf of the Lenders, a Subsidiary Guaranty and (ii) cause to be
delivered such opinions of counsel as are reasonably requested by, and are reasonably satisfactory
to, the Lead Agents in respect of such Subsidiary Guaranty.
(b) No later than 15 days after the date on which a Trigger Event occurs after the Fifth
Restatement Effective Date, each Credit Party (including each Subsidiary which is required to
become a Subsidiary Guarantor pursuant to Section 7.10(a)) shall (i) authorize, execute and deliver
to the Collateral Agent on behalf of the Secured Creditors pledge agreements, security agreements
and/or mortgages substantially in the form of the respective Security Documents entered into (or in
effect on) on the Fifth Restatement Effective Date (with such modifications thereto as may be
reasonably required by the Lead Agents), which agreements and mortgages shall be effective to
create in favor of the Collateral Agent on behalf of the Secured Creditors a pledge of and/or a
lien on substantially all of its assets (other than Excluded Collateral and subject to such other
exceptions as are reasonably satisfactory to the Lead Agents) with such priority as is provided for
in the representations contained in the respective Security Documents, (ii) deliver in pledge
thereunder all securities, notes, instruments and transfer powers required to be delivered by the
terms of the respective Security Documents, (iii) execute and cause to be filed such financing
statements and mortgages as are required to perfect the pledges and Liens created under the
Security Documents and to obtain the priority of such perfection required by the respective
Security Documents and (iv) cause to be delivered such opinions of counsel as are reasonably
requested by, and as are reasonably satisfactory to, the Lead Agents with respect to the Security
Documents and the pledges and Liens created thereunder.
(c) At any time (i) a Guaranty Event has occurred and is continuing and (ii) a Material
Subsidiary Threshold Event occurs, then on or prior to the 45th day following the date
of the occurrence of such Material Subsidiary Threshold Event, the Borrower shall cause one or more
Subsidiaries not then a Subsidiary Guarantor to take the actions described in Section 7.10(a) such
that, after giving effect to such actions, such Material Subsidiary Threshold Event shall cease to
exist. At any time (i) a Trigger Event has occurred and is continuing and (ii) a Material
Subsidiary Threshold Event occurs, then on or prior to the 45th day following the date
of the occurrence of such Material Subsidiary Threshold Event, the Borrower shall cause one or more
Subsidiaries not then a party to Security Documents to take the actions described in Section
7.10(b) such that, after giving effect to such actions, such Material Subsidiary Threshold Event
shall cease to exist.
(d) At any time a Trigger Event has occurred and is continuing, the Borrower will, and will
cause each of the other Credit Parties that are Subsidiaries of the Borrower to, grant to the
Collateral Agent for the benefit of the Secured Creditors security interests and mortgages in such
assets and properties of the Borrower and such other Credit Parties as are not covered by the
original Security Documents (excluding Excluded Collateral) and as may be reasonably requested from
time to time by the Collateral Agent or the Required Lenders (collectively, the “Additional
Security Documents”). All such security interests and mortgages shall be granted pursuant to
documentation reasonably satisfactory in form and substance to the
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Collateral Agent and shall
constitute valid and enforceable perfected security interests and mortgages superior to and prior
to the rights of all third Persons and subject to no other Liens except for Permitted Liens. The
Additional Security Documents or instruments related thereto shall have been duly recorded or filed
in such manner and in such places as are required by law to establish, perfect, preserve and
protect the Liens in favor of the Collateral Agent required to be granted pursuant to the
Additional Security Documents and all taxes, fees and other charges payable in connection therewith
shall have been paid in full.
(e) At any time a Trigger Event has occurred and is continuing, the Borrower will, and will
cause each of the other Credit Parties to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements,
powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee
agreements, control agreements and other assurances or instruments and take such further steps
relating to the Collateral covered by any of the Security Documents as the Collateral Agent may
reasonably require. Furthermore, the Borrower will, and will cause the other Credit Parties to,
deliver to the Collateral Agent such opinions of counsel, title insurance and other related
documents as may be reasonably requested by the Collateral Agent to assure itself that this Section
7.10 has been complied with.
(f) If the Administrative Agent or the Required Lenders reasonably determine that they are
required by law or regulation to have appraisals prepared in respect of any Real Property of the
Borrower and its Subsidiaries constituting Collateral, the Borrower will, at its own expense,
provide to the Administrative Agent appraisals which satisfy the applicable requirements of the
Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and
Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably
satisfactory to the Administrative Agent.
(g) The Borrower agrees that each action required by clauses (d) through (f) of this Section
7.10 shall be completed as soon as possible, but in no event later than 60 days after such action
is requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders,
as the case may be; provided that in no event will the Borrower or any of its Subsidiaries
be required to take any action, other than using its commercially reasonable efforts, to obtain
consents from third parties with respect to its compliance with this Section 7.10.
(h) [reserved].
(i) Notwithstanding anything to the contrary in this Section 7.10, all Collateral shall be
released in accordance with the release provisions of the Security Documents (subject to
reinstatement upon the occurrence of a new Trigger Event) if at any time subsequent to the Fifth
Restatement Effective Date or any reinstatement of the requirements of Section 7.10(b) after the
Fifth Restatement Effective Date as a result of the occurrence of a new Trigger Event, the
Applicable Corporate Credit Rating issued by each Rating Agency shall, after giving effect to such
release and subject to the completion of such release, if applicable, each be the Minimum
Investment Grade Rating or higher (with at least a stable outlook).
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7.11 Margin Stock. The Borrower will take all actions so that at all times the Fair
Market Value of all Margin Stock owned by the Borrower and its Subsidiaries shall not exceed
$50,000,000 (for such purposes, determined without regard to the Fair Market Value of the shares of
the Excluded Joint Ventures held by the Borrower and its Subsidiaries, to the extent same shall at
any time constitute Margin Stock). So long as the covenant contained in the immediately preceding
sentence is complied with, all Margin Stock at any time owned by the Borrower and its Subsidiaries
will not constitute Collateral and no security interest shall be granted therein
pursuant to any Credit Document. Without excusing any violation of the first sentence of this
Section 7.11, if at any time the Fair Market Value of all Margin Stock owned by the Borrower and
its Subsidiaries exceeds the amount permitted pursuant to the first sentence of this Section 7.11,
then (x) all Margin Stock owned by the Credit Parties shall be pledged, and delivered for pledge,
pursuant to the Pledge Agreement and (y) the Borrower will execute and deliver to the Lenders
appropriate completed forms (including, without limitation, Forms G-3 and U-1, as appropriate)
establishing compliance with Regulations T, U and X of the Board of Governors of the Federal
Reserve System. If at any time any Margin Stock is required to be pledged as a result of the
provisions of the immediately preceding sentence, repayments of outstanding Obligations shall be
required, and subsequent Credit Events shall be permitted, only in compliance with the applicable
provisions of Regulations T, U and X of the Board of Governors of the Federal Reserve System.
7.12 Ownership Structure. The Borrower shall cause (i) the Equity Interests of each
Subsidiary Guarantor at all times to be owned directly by the Borrower or another Subsidiary
Guarantor, (ii) the Equity Interests of Xxxxxxxx Tobacco at all times to be directly owned by RJRTH
and (iii) the Conwood Subsidiaries, Santa Fe and Lane to be Subsidiaries of the Borrower but not
Subsidiaries of RJRTH; provided that the preceding clause (i) shall not prohibit the sale
of any such Subsidiary to a Person that is not a Subsidiary pursuant to a transaction permitted by
Section 8.02.
7.13 Tax Sharing Agreement. The Borrower shall cause each new direct Subsidiary
formed or acquired after the Fifth Restatement Effective Date (other than an Insignificant
Subsidiary) to execute a counterpart to the Tax Sharing Agreement (or a joinder agreement therefor
in form and substance reasonably satisfactory to the Administrative Agent) within 5 days following
such formation or acquisition.
SECTION 8. Negative Covenants. The Borrower hereby covenants and agrees that on the
Fifth Restatement Effective Date and thereafter, for so long as this Agreement is in effect and
until the Commitments and each Letter of Credit have terminated and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder, are paid in full:
8.01 Changes in Business. Except as otherwise permitted by Section 8.02, the Borrower
and its Subsidiaries, taken as a whole, will not substantively alter the character of their
business from that conducted by the Borrower and its Subsidiaries taken as a whole on the Fifth
Restatement Execution Date.
8.02 Consolidation, Merger, Sale of Assets, etc. The Borrower will not, and will not
permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter
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into any
transaction of merger or consolidation, or
convey, sell, lease (as lessor) or otherwise dispose of all or any part of its property or
assets (other than sales of inventory to customers in the ordinary course of business) or agree to
do any of the foregoing at any future time, except that:
(a) any Subsidiary of the Borrower may from time to time sell or otherwise dispose of
inventory, equipment, raw materials and other assets (other than Equity Interests) to
another Subsidiary of the Borrower in the ordinary course of business, so long as (x) cash
in an amount equal to at least the Fair Market Value of the assets so transferred is
received by the respective transferor or (y) no Default or Event of Default then exists or
would result therefrom, intercompany indebtedness owing by the respective transferor to the
respective transferee in an amount equal to at least the Fair Market Value of the assets so
transferred is forgiven by such transferee;
(b) each Subsidiary of the Borrower may sell or otherwise transfer obsolete,
uneconomic or worn-out equipment, materials or other assets in the ordinary course of
business;
(c) Permitted Acquisitions may be consummated in accordance with the requirements of
Section 8.09(l);
(d) any Subsidiary of the Borrower may transfer or otherwise dispose of any of its
respective assets (including cash, fixed assets and intellectual property but excluding
Equity Interests of a Subsidiary Guarantor owned or held by such Person) to any of their
respective Subsidiaries not otherwise permitted by this Section 8.02, so long as (i) no
Default or Event of Default is then in existence or would result therefrom and (ii) the
aggregate amount of all such transfers and dispositions made pursuant to this clause (d) on
and after the Fifth Restatement Effective Date (taking the Fair Market Value of any non-cash
assets so transferred or disposed of) shall not exceed, when aggregated with (I) the
aggregate amount of all Investments made by Subsidiaries of the Borrower in reliance on
Section 8.09(n) (taking the Fair Market Value of any non-cash assets so invested and
determined without regard to any write-downs or write-offs thereof and net of any returns of
capital), (II) the aggregate amount of contributions, capitalizations and forgiveness
theretofore made by Credit Parties pursuant to Section 8.09(j) to (or in respect of)
Wholly-Owned Subsidiaries that are not Credit Parties and (III) the aggregate outstanding
principal amount of all Intercompany Loans made pursuant to Section 8.09(i) by Credit
Parties to Wholly-Owned Subsidiaries that are not Credit Parties (determined without regard
to any write-downs or write-offs thereof), $500,000,000;
(e) each Subsidiary of the Borrower may sell or discount, in each case without
recourse and in the ordinary course of business, accounts receivable arising in the ordinary
course of business, but only in connection with the compromise or collection thereof and not
as part of any financing transaction;
(f) each Subsidiary of the Borrower may grant licenses, sublicenses, leases or
subleases to other Persons not materially interfering with the conduct of the business of
any Subsidiary of the Borrower or any other, in each case so long as no such grant
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otherwise affects any security interest of the Collateral Agent in the asset or
property subject thereto;
(g) any Subsidiary of the Borrower may merge with and into, or be dissolved or
liquidated into, or transfer assets to, any Subsidiary Guarantor, so long as (x) in the case
of any merger, dissolution or liquidation, a Subsidiary Guarantor is the surviving Company
of any such merger, dissolution or liquidation, and (y) if a Trigger Event has occurred and
is continuing, any security interests granted to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Security Documents in the assets of such surviving
Subsidiary Guarantor or so transferred are in full force and effect and perfected and
enforceable (to at least the same extent as in effect immediately prior to such merger,
dissolution, liquidation or transfer) and all actions (if any) then required to maintain
said perfected status have been taken;
(h) any Domestic Subsidiary of the Borrower that is not a Credit Party may merge with
and into, or be dissolved or liquidated into, or transfer assets to, any other Wholly-Owned
Domestic Subsidiary of the Borrower that is not a Credit Party, so long as (x) in the case
of any merger, dissolution or liquidation, such Wholly-Owned Domestic Subsidiary is the
surviving Company of any such merger, dissolution or liquidation, and (y) if a Guaranty
Event has occurred and is continuing and either (I) the Person that is the survivor of any
such merger, dissolution or liquidation is (after giving effect thereto) a Material
Subsidiary or (II) the Person that is the transferee of such assets is a Material Subsidiary
after giving effect thereto, such new Material Subsidiary shall have executed (A) a
counterpart of the Subsidiary Guaranty and (B) if a Trigger Event has occurred and is
continuing at such time, such Security Documents as the Lead Agents shall reasonably
request, with, in the case of this clause (B), such actions having been taken to perfect the
pledge of, and Liens on, the stock and substantially all of the assets of such new
Subsidiary as would have been taken if such new Subsidiary had been a Subsidiary Guarantor
on the Fifth Restatement Effective Date, all to the reasonable satisfaction of the Lead
Agents;
(i) [reserved];
(j) any Foreign Subsidiary of the Borrower may merge with and into, or be dissolved or
liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of
the Borrower, so long as (i) in the case of any such merger, dissolution or liquidation, a
Wholly-Owned Foreign Subsidiary of the Borrower is the survivor of such merger, dissolution
or liquidation, and (ii) any security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the Equity Interests
of such Wholly-Owned Foreign Subsidiary shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to such merger, dissolution or
liquidation);
(k) the Borrower or any Subsidiary of the Borrower may sell assets (other than the
Equity Interests of any Wholly-Owned Subsidiary, unless all of the Equity Interests of such
Wholly-Owned Subsidiary are sold in accordance with this clause (k)) to a Person other than
a Subsidiary, so long as (x) no Default or Event of Default then exists or would
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result therefrom, (y) each such sale is in an arm’s-length transaction and the Borrower
or the respective Subsidiary receives at least Fair Market Value, and (z) the aggregate
amount of the proceeds received from all assets sold pursuant to this clause (k) after the
Fifth Restatement Effective Date shall not exceed $800,000,000;
(l) the Borrower and its Subsidiaries may dispose of (including by means of donation)
any of the designated properties listed on Annex XI hereto owned by it to any other Person,
so long as no Default or Event of Default then exists or would result therefrom; and
(m) the Borrower and its Subsidiaries may sell, liquidate and/or dispose of Marketable
Investments in the ordinary course of business.
To the extent the Required Lenders waive the provisions of this Section 8.02 with respect to
the sale of any Collateral, or any Collateral is sold as permitted by this Section 8.02 (other than
to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens
created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be
authorized to take any actions deemed appropriate in order to effect the foregoing.
8.03 Liens. The Borrower will not, and will not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of
any kind (whether real or personal, tangible or intangible) of the Borrower or any of its
Subsidiaries, whether now owned or hereafter acquired, or sell any such property or assets subject
to an understanding or agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable with recourse to the Borrower or any of its Subsidiaries),
or assign any right to receive income; provided that the provisions of this Section 8.03
shall not prevent the creation, incurrence, assumption or existence of the following (Liens
described below are herein referred to as “Permitted Liens”):
(a) Liens encumbering customary initial deposits and margin deposits, and other Liens
incurred in the ordinary course of business and which are within the general parameters
customary in the industry, securing obligations under Commodities Agreements;
(b) Liens securing Indebtedness permitted by Section 8.04(c), provided that (x)
such Liens are granted in the ordinary course of business and (y) in the case of Liens
securing indebtedness described in sub-clause (x) of Section 8.04(c), such Liens shall
attach only to documents or other property relating to such letters of credit and the
products and proceeds thereof;
(c) Liens arising pursuant to purchase money mortgages or security agreements securing
Indebtedness of any Subsidiary of the Borrower representing the purchase price (or financing
of the purchase price within 180 days after the respective purchase) of assets acquired,
provided that (i) any such Liens attach only to the assets so purchased, (ii) the
Indebtedness secured by any such Lien is not less than 70% of the
purchase price of the property being purchased, and (iii) the Indebtedness secured
thereby is permitted pursuant to Section 8.04(d);
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(d) Liens on specific tangible assets at the time acquired by any Subsidiary of the
Borrower (including pursuant to a Permitted Acquisition) or on the property or assets of a
Person at the time such Person first becomes a Subsidiary of the Borrower, provided
that (i) any such Liens were not created at the time of or in contemplation of the
acquisition of such assets or Person by the respective Subsidiary, (ii) in the case of any
such acquisition of a Person, any such Lien attaches only to a specific tangible asset of
such Person and not assets of such Person generally, (iii) the Indebtedness secured by any
such Lien does not exceed 100% of the Fair Market Value of the asset to which such Lien
attaches, determined at the time of the acquisition of such asset or at the time such Person
first becomes a Subsidiary, as the case may be, and (iv) the Indebtedness that is secured by
such Liens is permitted to exist under Section 8.04(e);
(e) Liens created pursuant to the Security Documents, including Liens created pursuant
thereto for the benefit of the holders of New Senior Notes, Existing Senior Notes and
Refinancing Senior Notes;
(f) Liens resulting from the Borrower or Xxxxxxxx Tobacco cash collateralizing
Litigation Bonds or judgments not constituting an Event of Default under Section 9.08, or
providing cash collateral directly to courts to satisfy such courts’ requirements for a stay
to appeal verdicts, orders and/or judgments;
(g) Existing Liens (and any extensions or renewals of such Liens (to the extent
included in the definition of Existing Liens), to the extent such Liens do not attach to any
additional properties and the Indebtedness secured thereby is not increased);
(h) Liens securing the performance of bids, tenders, leases and contracts in the
ordinary course of business, surety bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business and consistent with past practices
(exclusive of obligations in respect of the payment for borrowed money and Litigation
Bonds);
(i) Liens encumbering the Borrower Common Stock repurchased in accordance with the
requirements of Section 8.05(c) or (d), to the extent that such Liens (x) are created for
the sole purpose of securing obligations of the Borrower to the agent brokering any such
repurchase incurred in connection with such repurchase and (y) terminate upon the payment of
such obligations;
(j) Liens encumbering cash deposits securing obligations under Permitted Interest Rate
Agreements and Permitted Currency Agreements, so long as the aggregate amount of the cash
pledged to secure such obligations pursuant to this clause (j) does not exceed $500,000,000;
(k) Liens in respect of property or assets of the Borrower or any of its Subsidiaries
imposed by law which were incurred in the ordinary course of business and which have not
arisen to secure Indebtedness for borrowed money, such as carriers’,
materialmen’s, warehousemen’s and mechanics’ Liens, statutory and common law landlord’s
Liens, and other similar Liens arising in the ordinary course of business, and
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which either
(x) do not in the aggregate materially detract from the value of the Borrower’s or such
Subsidiary’s property or assets or materially impair the use thereof in the operation of the
business of the Borrower or such Subsidiary or (y) are being contested in good faith by
appropriate proceedings, which proceedings have the effect of preventing the forfeiture or
sale of the property or asset subject to such Lien;
(l) Liens arising from or related to precautionary UCC financing statements regarding
operating leases entered into by Borrower or any Subsidiary of the Borrower in the ordinary
course of business;
(m) easements, rights-of-way, restrictions, encroachments and other similar charges or
encumbrances, and minor title deficiencies, in each case not securing Indebtedness and not
materially interfering with the conduct of the business of the Borrower or any of its
Subsidiaries;
(n) Permitted Encumbrances;
(o) inchoate Liens for taxes, assessments or governmental charges or levies not yet due
or Liens for taxes, assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have been established in
accordance with GAAP;
(p) licenses, sublicenses, leases or subleases granted by the Borrower or any of its
Subsidiaries to other Persons not materially interfering with the conduct of the business of
the Borrower or any of its Subsidiaries;
(q) any interest or title of a lessor, sublessor or licensor under any lease or license
agreement permitted by this Agreement to which the Borrower or any of its Subsidiaries is a
party;
(r) statutory and common law landlords’ liens under leases to which the Borrower or any
of its Subsidiaries is a party;
(s) Liens arising out of any conditional sale, title retention, consignment or other
similar arrangements for the sale of goods entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business to the extent such Liens do not attach to
any assets other than the goods subject to such arrangements;
(t) Liens (x) incurred in the ordinary course of business in connection with the
purchase or shipping of goods or assets (or the related assets and proceeds thereof), which
Liens are in favor of the seller or shipper of such goods or assets and only attach to such
goods or assets, and (y) in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of goods;
(u) bankers’ Liens, rights of setoff and other similar Liens existing solely with
respect to cash and Marketable Investments on deposit in one or more accounts maintained by
the Borrower or any Subsidiary, in each case granted in the ordinary
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course of business in
favor of the bank or banks with which such accounts are maintained, securing amounts owing
to such bank or banks with respect to cash management and operating account arrangements;
and
(v) Liens not otherwise permitted by the foregoing clauses (a) through (u) above,
provided that the aggregate amount of Indebtedness and other obligations secured by
Liens permitted by this clause (v) shall not exceed $350,000,000 at any time.
In connection with the granting of Liens of the type described in (and expressly permitted by)
clauses (a), (b), (c), (d), (f), (g), (h), (j), (l), (n), (s), (t)(x), (u) and (v) of this Section
8.03 by the Borrower or any of its Subsidiaries, the Administrative Agent and the Collateral Agent
shall be authorized, upon receipt of an officer’s certificate executed by an Authorized Officer of
the Borrower and certifying that such Liens are Permitted Liens, to take any actions deemed
appropriate by it in connection therewith (including, without limitation, by executing and/or
filing appropriate lien releases or lien subordination agreements in favor of the holder or holders
of such Liens, in either case solely with respect to the item or items of equipment or other assets
subject to such Liens).
8.04 Indebtedness. The Borrower will not, and will not permit any of its Subsidiaries
to, contract create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other Credit Documents;
(b) Intercompany Loans by and among the Borrower and its Subsidiaries, to the extent
permitted by Section 8.09(i);
(c) Indebtedness of the Borrower or any of its Subsidiaries with respect to (x) trade
letters of credit incurred in the ordinary course of business (which are to be repaid in
full not more than one year after the date originally incurred) to finance the purchase of
tobacco or other products or goods for use in the day-to-day operations of the Subsidiaries
of the Borrower consistent with such Subsidiaries’ past practices or then current industry
practices and (y) letters of credit incurred in the ordinary course of business in
connection with payments of foreign excise taxes in respect of tobacco sales;
(d) Indebtedness of the Borrower and its Subsidiaries evidenced by purchase money
Indebtedness described in Section 8.03(c), provided that in no event shall the
aggregate principal amount of all such Indebtedness permitted pursuant to this clause (d)
exceed $300,000,000 at any time outstanding;
(e) Indebtedness of (x) a Subsidiary of the Borrower assumed in connection with the
acquisition of a specific tangible asset that is secured by such Indebtedness or (y) a
Person at the time such Person first becomes a Subsidiary of the Borrower (including
pursuant to a Permitted Acquisition), provided that (i) such Indebtedness was not
incurred in connection with, or in anticipation or contemplation of, such acquisition, and
(ii) the aggregate outstanding principal amount of all Indebtedness pursuant to this clause
(e) shall not exceed $200,000,000 at any time;
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(f) Indebtedness of the Borrower or any of its Subsidiary Guarantors constituting
reimbursement obligations in respect of Litigation Bonds;
(g) Existing Debt (and any extensions, renewals or refinancings of such Indebtedness to
the extent not increasing the outstanding principal amount thereof); provided that
any intercompany Indebtedness among the Borrower or any of its Subsidiaries shall be subject
to the requirements applicable to Intercompany Loans as set forth in clauses (iii), (iv) and
(v) of the proviso appearing in Section 8.09(i) as if such intercompany Indebtedness was an
Intercompany Loan and shall be subject to extensions, renewals or refinancings only to the
extent the obligor and obligee of such intercompany Indebtedness are not altered;
(h) Indebtedness of the Borrower and its Subsidiaries with respect to performance
bonds, surety bonds or customs bonds required in the ordinary course of business (but
excluding any Contingent Obligations in respect of, or reimbursement obligations relating
to, Litigation Bonds);
(i) (x) Indebtedness of the Borrower and any of its Subsidiaries under, or under any
guaranty of, Permitted Currency Agreements and Permitted Interest Rate Agreements and (y)
Indebtedness of the Borrower under guaranties of RJRTH’s obligations in respect of the Stub
Notes;
(j) Indebtedness of (x) the Borrower in respect of the Initial New Senior Notes and the
Subsidiary Guarantors under their guaranties of the Borrower’s obligations in respect of the
Initial New Senior Notes, (y) RJRTH in respect of the Existing Senior Notes and the
Subsidiary Guarantors that are Subsidiaries of RJRTH under their guaranties of RJRTH’s
obligations in respect of the Existing Senior Notes and (z) the Borrower in respect of
Exchange Senior Notes and the Subsidiary Guarantors under their guaranties of the Borrower’s
obligations in respect of the Exchange Senior Notes; provided that that aggregate
outstanding principal amount of all Indebtedness permitted by this clause (j) shall not
exceed $3,200,000,000 (as reduced by any principal repayments of Initial New Senior Notes,
Existing Senior Notes or Exchange Senior Notes but excluding, for avoidance of doubt, any
reduction of the outstanding principal amount of the Existing Senior Notes as a result of
any exchange thereof for Exchange Senior Notes as contemplated by the definition of
“Exchange Senior Notes”);
(k) Indebtedness of the Borrower in respect of Additional Senior Notes and the
Subsidiary Guarantors under their guaranties of the Borrower’s obligations in respect of
Additional Senior Notes; provided that the aggregate outstanding principal amount of
all Additional Acquisition Senior Notes, when aggregated with the aggregate outstanding
principal amount of all Refinancing Senior Notes issued to refinance Additional
Acquisition Senior Notes (and any other Refinancing Senior Notes subsequently issued to
refinance the same), shall not exceed $500,000,000 at any time;
(l) Indebtedness of the Borrower in respect of Refinancing Senior Notes and the
Subsidiary Guarantors under their guaranties of the Borrower’s obligations in respect of
Refinancing Senior Notes; provided that (i) the aggregate outstanding principal
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amount of all Refinancing Senior Notes issued to refinance Additional Acquisition Senior
Notes (and any other Refinancing Senior Notes subsequently issued to refinance the same),
when aggregated with the aggregate outstanding principal amount of all Additional
Acquisition Senior Notes, shall not exceed $500,000,000 at any time, and (ii) the aggregate
outstanding principal amount of all Refinancing Senior Notes issued to Refinance (within the
meaning of clause (ii) of the definition of “Refinance”) New Senior Notes and other
Refinancing Senior Notes shall be limited as provided in the definition of “Refinancing
Senior Notes”;
(m) Indebtedness of the Borrower or any of its Subsidiaries in any manner guaranteeing
or intended to guarantee, whether directly or indirectly, any leases, dividends or other
monetary obligations of any Person in which the Borrower or such Subsidiary has an ownership
interest, provided that the aggregate maximum stated or determinable amount (or, if
not stated or determinable, the maximum reasonably anticipated liability in respect of such
Indebtedness as determined in good faith by the Borrower or such Subsidiary) of all
Indebtedness permitted pursuant to this clause (m) shall not exceed at any time an amount in
excess of $150,000,000;
(n) unsecured Contingent Obligations of the Borrower as a guarantor of any contractual
obligations of any Wholly-Owned Subsidiary of the Borrower (which contractual obligations do
not themselves constitute Indebtedness); and
(o) Indebtedness of the Borrower and its Subsidiaries not otherwise permitted by any of
the foregoing clauses (a) through (n), provided that the aggregate outstanding
principal amount of Indebtedness pursuant to this clause (o) shall not exceed $350,000,000
at any time.
8.05 Limitation on Dividends. The Borrower will not, and will not permit any of its
Subsidiaries to, declare, pay or otherwise authorize any dividends (other than dividends payable
solely in non-redeemable common stock or comparable common Equity Interests of the Borrower or any
such Subsidiary, as the case may be) or return any equity capital to, its stockholders, partners,
members or other equityholders or declare, authorize or make any other distribution, payment or
delivery of property or cash to its stockholders, partners, members or other equity holders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a
consideration, any shares of any class of its capital stock or other Equity Interests, now or
hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of
any of such shares or other Equity Interests), or set aside any funds for any of the foregoing
purposes, and the Borrower will not and will not permit any of its Subsidiaries to purchase or
otherwise acquire for consideration any shares of any class of the capital stock or other Equity
Interests of the Borrower or any other
Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or
stock appreciation rights issued by such Person with respect to its capital stock or other Equity
Interests) (all of the foregoing “Dividends”), except that:
(a) (i) any Subsidiary of the Borrower may pay Dividends to the Borrower or any
Wholly-Owned Subsidiary of the Borrower, and (ii) any non-Wholly-Owned Subsidiary of the
Borrower may pay cash Dividends to its shareholders generally so long
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as the Borrower or its
respective Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends
receives at least its proportionate share thereof (based upon its relative holding of the
Equity Interests in the Subsidiary paying such Dividends and taking into account the
relative preferences, if any, of the various classes of Equity Interests of such
Subsidiary);
(b) the Borrower may issue shares of Borrower Common Stock upon the exercise of any
warrants or options or upon the conversion or redemption of any convertible or redeemable
preferred or preference stock, and in connection with any such exercise, conversion or
redemption, the Borrower may, so long as no Event of Default then exists or would result
therefrom, pay cash in lieu of issuing fractional shares of Borrower Common Stock;
(c) so long as no Event of Default then exists or would result therefrom, the Borrower
may repurchase Borrower Common Stock (and/or options or warrants in respect thereof)
pursuant to, and in accordance with the terms of, management and/or employee stock plans,
provided that the aggregate amount of cash paid in respect of all such repurchases
in any calendar year pursuant to this clause (c) does not exceed $40,000,000;
(d) the Borrower may declare and pay, or otherwise pay or make, any other Dividend, so
long as (i) no Event of Default then exists or would result therefrom, (ii) on the date such
Dividend is paid or made (in the case of a Non-Declared Dividend) or declared or otherwise
authorized (in the case of any other Dividend), the Borrower is in compliance with the
covenants contained in Sections 8.07 and 8.08 for the Calculation Period most recently ended
prior to such date, on a Pro Forma Basis, as if the respective Dividend to
be paid, made, declared or authorized had been paid (and any Indebtedness incurred (or to be
incurred) to finance the same had been incurred and any other event requiring pro forma
effect pursuant to the definition of “Pro Forma Basis” had occurred) on the first day of
such Calculation Period, and (iii) in the case of any Dividend (other than a Non-Declared
Dividend), such Dividend is paid within 90 days of the making of such declaration or other
authorization;
(e) the Borrower may issue and exchange shares of any class or series of its common
stock now or hereafter outstanding for shares of any other class or series of its common
stock now or hereafter outstanding; and
(f) the Borrower may, in connection with any reclassification of its common stock and
any exchange permitted by clause (e) above, pay cash in lieu of issuing fractional shares of
any class or series of its common stock.
8.06 Transactions with Affiliates. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any Affiliate (other than any Wholly-Owned Subsidiary of the
Borrower) other than on terms and conditions substantially as favorable to the Borrower or such
Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time in a comparable
arm’s-length transaction with a Person other than an Affiliate; provided
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that the foregoing
restrictions shall not apply to: (i) customary fees paid to members of the Board of Directors of
the Borrower and of its Subsidiaries; (ii) the Transaction; (iii) Dividends permitted to be paid
pursuant to Section 8.05; and (iv) the entering into, and making of payments under, employment
agreements, employee benefits plans, stock option plans, indemnification provisions, severance
arrangements, and other similar compensatory arrangements with officers, employees and directors of
the Borrower and its Subsidiaries in the ordinary course of business.
8.07 Consolidated Total Leverage Ratio. The Borrower will not permit the Consolidated
Total Leverage Ratio at any time on or after June 30, 2007 to be greater than 3.25:1.00.
8.08 Consolidated Interest Coverage Ratio. The Borrower will not permit the
Consolidated Interest Coverage Ratio for any Test Period to be less than 3.00:1.00.
8.09 Investments. The Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, lend money or credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or acquire (in one transaction or a series of
related transactions) all or substantially all of the property and assets or business of another
Person or assets constituting a business unit, line of business or division of such Person
(including by way of consolidation or merger), or purchase or own a futures contract or otherwise
become liable for the purchase or sale of currency or other commodities at a future date in the
nature of a futures contract, or hold any cash or Marketable Investments (each of the foregoing an
“Investment” and, collectively, “Investments”), except that the following shall be
permitted:
(a) any Subsidiary of the Borrower may acquire and hold accounts receivables owing to
any of them, if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms of such Subsidiary;
(b) the Borrower and its Subsidiaries may acquire and hold cash, Marketable Investments
and Investment Equities; provided however that the aggregate amount of cash,
Marketable Investments and Investment Equities permitted to be held by (i) Non-Guarantor
Subsidiaries that are Domestic Subsidiaries shall not exceed $50,000,000 for any period of
five consecutive Business Days and (ii) Non-Guarantor Subsidiaries that are
not Domestic Subsidiaries shall not exceed $150,000,000 for any period of five
consecutive Business Days;
(c) the Borrower and its Subsidiaries may hold the Investments held by them on the
Fifth Restatement Effective Date and described on Annex IX, provided that any
additional Investments made with respect thereto shall be permitted only if independently
justified under the other provisions of this Section 8.09;
(d) any Subsidiary of the Borrower may acquire and own investments (including debt
obligations) received in connection with the bankruptcy or reorganization of suppliers and
customers or in good faith settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
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(e) any Subsidiary of the Borrower may make loans and advances to their officers and
employees for moving, relocation and travel expenses and other similar expenditures, in each
case in the ordinary course of business in an aggregate principal amount not to exceed
$5,000,000 at any time outstanding (determined without regard to any write-downs or
write-offs of such loans and advances);
(f) the Borrower may acquire and hold obligations of one or more officers, directors or
other employees of the Borrower or any of its Subsidiaries in connection with such
officers’, directors’ or employees’ acquisition of shares of capital stock of the Borrower,
so long as no cash is paid by the Borrower or any of its Subsidiaries to such officers,
directors or employees in connection with the acquisition of any such obligations;
(g) the Borrower and any of its Subsidiaries may enter into Permitted Interest Rate
Agreements and Permitted Currency Agreements;
(h) any Subsidiary of the Borrower may acquire and hold promissory notes and other
non-cash consideration issued by the purchaser of assets in connection with a sale or other
disposition of such assets permitted by Sections 8.02(d), (k) and (l);
(i) the Borrower and its Wholly-Owned Subsidiaries may make intercompany loans and
advances between and among one another (collectively, “Intercompany Loans”),
provided that (i) at no time shall the aggregate outstanding principal amount of all
Intercompany Loans made pursuant to this clause (i) by Credit Parties to Wholly-Owned
Subsidiaries that are not Credit Parties (determined without regard to any write-downs or
write-offs thereof), when added to (I) the aggregate amount of contributions,
capitalizations and forgiveness theretofore made by Credit Parties pursuant to Section
8.09(j) to (or in respect of) Wholly-Owned Subsidiaries that are not Credit Parties, (II)
the aggregate amount of all Investments made pursuant to Section 8.09(n) (taking the Fair
Market Value of any non-cash assets so invested and determined without regard to any
write-downs or write-offs thereof and net of any returns of capital), and (III) the
aggregate amount of all transfers and dispositions made by Subsidiaries of the Borrower in
reliance on Section 8.02(d) (taking the Fair Market Value of any non-cash assets so
transferred or disposed of), exceed $500,000,000, (ii) no Intercompany Loans may be made by
a Credit
Party to a Wholly-Owned Subsidiary that is not a Credit Party at a time that an Event
of Default exists and is continuing, (iii) if any such Intercompany Loan made by a Credit
Party is evidenced by a promissory note, such note shall be in form and substance reasonably
satisfactory to the Administrative Agent and shall be pledged to the Collateral Agent as,
and to the extent required by, the Pledge Agreement (if then in effect), (iv) each
Intercompany Loan made pursuant to this clause (i) shall be subject to subordination as, and
to the extent required by, the Intercompany Subordination Agreement and (v) any Intercompany
Loan made pursuant to this clause (i) shall cease to be permitted hereunder if the obligor
or obligee thereunder ceases to be the Borrower or a Wholly-Owned Subsidiary of the Borrower
as contemplated above;
(j) the Borrower and its Wholly-Owned Subsidiaries may make cash capital contributions
to their respective Wholly-Owned Subsidiaries, and may capitalize or
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forgive any
Indebtedness owed to them by a Wholly-Owned Subsidiary outstanding under clause (i) of this
Section 8.09, provided that (i) the aggregate amount of such contributions,
capitalizations and forgiveness made by Credit Parties to Wholly-Owned Subsidiaries that are
not Credit Parties, when added to (I) the aggregate outstanding principal amount of
Intercompany Loans made by Credit Parties to Wholly-Owned Subsidiaries that are not Credit
Parties pursuant to Section 8.09(i) (determined without regard to any write-downs or
write-offs thereof), (II) the aggregate amount of all Investments made pursuant to Section
8.09(n) (taking the Fair Market Value of any non-cash assets so invested and determined
without regard to any write-downs or write-offs and net of any returns of capital), and
(III) the aggregate amount of all transfers and dispositions made by Subsidiaries of the
Borrower in reliance on Section 8.02(d) (taking the Fair Market Value of any non-cash assets
so transferred or disposed of), shall not exceed an amount equal to $500,000,000 at any
time, and (ii) no such contributions, capitalizations or forgivenesses may be made by a
Credit Party to a Wholly-Owned Subsidiary that is not a Credit Party at any time that an
Event of Default exists and is continuing;
(k) the Borrower and any of its Subsidiaries may acquire the stock or other Equity
Interests of any Person (other than the Borrower) owned by the Borrower or another
Subsidiary of the Borrower by way of the dividend of such stock or Equity Interest by such
other Subsidiary to the Borrower or such Subsidiary of the Borrower, so long as, in the
event any such stock or other Equity Interests are held by the Borrower or a Subsidiary
Guarantor immediately prior to the respective dividend, such stock or other Equity Interests
are held by the Borrower or another Subsidiary Guarantor after giving effect to such
dividend;
(l) the Borrower and each Wholly-Owned Domestic Subsidiary of the Borrower which is a
Subsidiary Guarantor may from time to time effect Permitted Acquisitions, so long as:
(i) no Default or Event of Default shall have occurred and be continuing at the
time of the consummation of the proposed Permitted Acquisition or immediately after
giving effect thereto;
(ii) the Borrower shall have given to the Administrative Agent and the Lenders
at least 10 Business Days’ prior written notice of any Permitted Acquisition (or
such shorter period of time as may be reasonably acceptable to the Administrative
Agent), which notice shall describe in reasonable detail the principal terms and
conditions of such Permitted Acquisition;
(iii) calculations are made by the Borrower with respect to the financial
covenants contained in Sections 8.07 and 8.08, for the respective Calculation Period
on a Pro Forma Basis as if the respective Permitted Acquisition (as
well as all other Permitted Acquisitions theretofore consummated after the first day
of such Calculation Period) had occurred on the first day of such Calculation
Period, and such calculations shall show that such financial covenants would have
been
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complied with if the Permitted Acquisition had occurred on the first day of
such Calculation Period;
(iv) all representations and warranties contained herein and in the other
Credit Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of the
date of such Permitted Acquisition (both before and after giving effect thereto),
unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material respects as
of such earlier date;
(v) the Aggregate Consideration payable for the proposed Permitted Acquisition,
when added to the Aggregate Consideration paid or payable for all other Permitted
Acquisitions theretofore consummated after the Fifth Restatement Effective Date,
does not exceed $1,000,000,000; and
(vi) if the Aggregate Consideration payable in connection with the proposed
Permitted Acquisition equals or exceeds $100,000,000, the Borrower shall have
delivered to the Administrative Agent and each Lender a certificate executed by its
chief financial officer, certifying to such officer’s knowledge, compliance with the
requirements of preceding clauses (i) through (v), inclusive, and containing the
calculations (in reasonable detail) required by preceding clauses (iii) and (v);
(m) the Borrower and its Subsidiaries may make loans or advances to salespersons
employed by them for purposes of enabling such salespersons to purchase “car stock” and for
other ordinary course purposes, all on a basis consistent with the past practices of the
Borrower and its Subsidiaries as in effect on the Fifth Restatement Effective Date; and
(n) the Borrower and any of its Subsidiaries may make Investments not otherwise
permitted by clauses (a) through (m) of this Section 8.09 (including by way of a capital
contribution by the Borrower or any of its Subsidiaries to any other Person of cash, fixed
assets and intellectual property but excluding capital stock or other equity interests of
any Subsidiary Guarantor), so long as (x) no Default or Event of Default then
exists or would result therefrom, and (y) the aggregate amount of all Investments made
pursuant to this clause (n) (taking the Fair Market Value of any non-cash assets so invested
and determined without regard to any write-downs or write-offs thereof and net of any
returns of capital), when aggregated with (I) the aggregate amount of all transfers and
dispositions made by Subsidiaries of the Borrower in reliance on Section 8.02(d) (taking the
Fair Market Value of any non-cash assets so transferred or disposed of), (II) the aggregate
amount of contributions, capitalizations and forgiveness theretofore made by Credit Parties
pursuant to Section 8.09(j) to (or in respect of) Wholly-Owned Subsidiaries that are not
Credit Parties and (III) the aggregate outstanding principal amount of all Intercompany
Loans made pursuant to Section 8.09(i) by Credit Parties to Wholly-Owned Subsidiaries that
are not Credit Parties (determined without regard to any write-downs or write-offs thereof),
shall not exceed $500,000,000.
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8.10 No Negative Pledge. (a) The Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into any agreement or arrangement that prohibits or restricts (including by
requiring ratable sharing of Liens) any Credit Party from entering into the Security Documents
and/or granting any Lien in favor of the Collateral Agent for the benefit of the Secured Creditors
other than (i) any ratable sharing of Liens provisions governing any of the New Senior Notes, the
Existing Senior Notes or the Refinancing Senior Notes, in each case, to the extent such provisions
shall be satisfied by the entering into of the Security Documents and the granting of Liens
thereunder in favor of the Collateral Agent for the benefit of the Secured Creditors and (ii) any
prohibition created in connection with any Lien permitted by Section 8.03 to the extent applicable
only to the property subject to such Lien.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Subsidiary to (i) pay dividends or make any other
distributions on its capital stock or any other Equity Interest or participation in its profits
owned by the Borrower or any of its Subsidiaries, or pay any Indebtedness owed to the Borrower or
any of its Subsidiaries, (ii) make loans or advances to the Borrower or any of its Subsidiaries or
(iii) transfer any of its properties or assets to the Borrower or any of its Subsidiaries, except
for such encumbrances or restrictions existing under or by reason of (1) applicable law, (2) this
Agreement and the other Credit Documents, (3) customary provisions restricting subletting or
assignment of any lease governing any leasehold interest of the Borrower or any of its
Subsidiaries, (4) customary provisions restricting assignment of any licensing agreement (in which
the Borrower or any of its Subsidiaries is the licensee) or other contract entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business, (5) restrictions on the
transfer of any asset pending the close of the sale of such asset, (6) restrictions on the transfer
of any asset subject to a Lien permitted by Section 8.03, and (7) the New Senior Notes, the
Existing Senior Notes, the Refinancing Senior Notes and the indentures governing the same.
8.11 Modifications of Certain Agreements; Limitations on Voluntary Payments, etc.. The Borrower will not, and will not permit any of its Subsidiaries to:
(a) amend, modify, change or waive any term or provision of the Tax Sharing Agreement,
or enter into any new tax sharing agreement, other than any amendments, modifications or
changes to the Tax Sharing Agreement which do not adversely affect the interests of the
Lenders in any material respect;
(b) make (or give any notice in respect of) any voluntary or optional payment or
prepayment on or voluntary or optional redemption, repurchase or acquisition for value of,
or any prepayment or redemption as a result of any asset sale, change of control or similar
event of (including, in each case without limitation, by way of depositing with the trustee
with respect thereto or any other Person money or securities before due for the purpose of
paying when due), any New Senior Note, any Existing Senior Note and any Refinancing Senior
Note; provided that, so long as no Default or Event of Default then exists or would
result therefrom, (i) Exchange Senior Notes may be issued in exchange for Existing Senior
Notes in accordance with the definition of “Exchange Senior Notes”, (ii) Refinancing Senior
Notes may be issued to
Refinance any New Senior Notes, any Existing Senior Notes or any
Refinancing Senior Notes theretofore issued to refinance
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New Senior Notes, Existing Senior
Notes or other Refinancing Senior Notes in accordance with the requirements of the
definition of “Refinancing Senior Notes” and (iii) following the 18-month anniversary of the
issuance of the 2007 New Senior Notes described in clause (ii) of the definition of “2007
New Senior Notes”, the Borrower may redeem such 2007 New Senior Notes pursuant to, and in
accordance with, the terms of the New Senior Notes Indenture; and
(c) amend or modify, or permit the amendment or modification of, any provision of any
New Senior Note, any Existing Senior Note, any Refinancing Senior Note or any indenture or
other agreement governing the foregoing, other than any amendments, modifications or changes
which do not adversely affect the interests of the Lenders in any material respect.
8.12 Maintenance of Company Separateness. The Borrower will, and will cause each of
its Subsidiaries to, satisfy customary Company formalities, including the holding of regular board
of directors’ and shareholders’ meetings or action by directors or shareholders without a meeting
and the maintenance of Company records. Neither the Borrower nor any other Credit Party shall make
any payment to a creditor of any Non-Guarantor Subsidiary in respect of any liability of any
Non-Guarantor Subsidiary, and no bank account of any Non-Guarantor Subsidiary shall be commingled
with any bank account of the Borrower or any other Credit Party. Finally, neither the Borrower nor
any of its Subsidiaries shall take any action, or conduct its affairs in a manner, which is likely
to result in the Company existence of the Borrower, any other Credit Party or any Non-Guarantor
Subsidiary being ignored, or in the assets and liabilities of the Borrower or any other Credit
Party being substantively consolidated with those of any other such Person or any Non-Guarantor
Subsidiary in a bankruptcy, reorganization or other insolvency proceeding.
8.13 Capital Expenditures. (a) The Borrower will not, and will not permit any of its Subsidiaries to, make any
Capital Expenditures, except that (i) during the period from the Fifth Restatement Effective Date
through and including December 31, 2007, the Borrower and its Subsidiaries may make Capital
Expenditures, so long as the aggregate amount of all such Capital Expenditures during such period
does not exceed $300,000,000, and (ii) during any fiscal year of the Borrower ended after December
31, 2007 (taken as one accounting period), the Borrower and its Subsidiaries may make Capital
Expenditures, so long as the aggregate amount of all such Capital Expenditures does not exceed
$300,000,000 in such fiscal year.
(b) In addition to the foregoing, in the event that the amount of Capital Expenditures
permitted to be made by the Borrower and its Subsidiaries pursuant to Section 8.13(a) above in any
period or fiscal year of the Borrower, as the case may be (before giving effect to any increase in
such permitted Capital Expenditure amount pursuant to this clause (b)) is greater than the amount
of Capital Expenditures actually made by the Borrower and its Subsidiaries during such period or
fiscal year, as the case may be, the lesser of (x) such excess and (y) 50% of the applicable
permitted scheduled Capital Expenditure amount as set forth in Section 8.13(a)(i) or (ii), as the
case may be, above, may be carried forward and utilized to make Capital Expenditures in any
succeeding fiscal year.
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(c) In addition to the foregoing, the Borrower and its Subsidiaries may make additional
Capital Expenditures (which Capital Expenditures will not be included in any determination under
Section 8.13(a) or (b)) constituting Permitted Acquisitions effected in accordance with the
requirements of Section 8.09.
SECTION 9. Events of Default . Upon the occurrence of any of the following specified
events (each, an “Event of Default”):
9.01 Payments. The Borrower shall (i) default in the payment when due of any
principal of the Loans or (ii) default, and such default shall continue for five or more days, in
the payment when due of any interest on the Loans or any Fees or any Unpaid Drawings or any other
amounts owing hereunder or under any other Credit Document; or
9.02 Representations, etc. Any representation, warranty or statement made or deemed
made by any Credit Party herein or in any other Credit Document or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or
9.03 Covenants. The Borrower or any of its Subsidiaries shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in Section 7.01(d)(x),
7.09, 7.10, 7.12 or 8, or (b) default in the due performance or observance by it of any term,
covenant
or agreement (other than those referred to in Section 9.01, 9.02 or clause (a) of this Section
9.03) contained in this Agreement and such default shall continue unremedied for a period of at
least 30 days after notice to the Borrower by any Lead Agent or the Required Lenders; or
9.04 Default Under Other Agreements. (a) The Borrower or any of its Subsidiaries
shall (i) default in any payment with respect to any Indebtedness (other than the Obligations) in
excess of $200,000,000, individually or in the aggregate, for the Borrower and its Subsidiaries,
beyond the period of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created or (ii) default in the observance or performance of any agreement or
condition relating to any such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice or lapse of time is required), any such Indebtedness to become
due prior to its stated maturity; or (b) any such Indebtedness shall be declared to be due and
payable, or required to be prepaid other than by a regularly scheduled required prepayment or as a
mandatory prepayment (unless such required prepayment or mandatory prepayment results from a
default or an event of the type that constitutes an Event of Default), prior to the stated maturity
thereof; or
9.05 Bankruptcy, etc. Any Credit Party or any of its Material Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States Code entitled
“Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “Bankruptcy
Code”); or an involuntary case under the Bankruptcy Code is commenced against any Credit Party
or any of its Material Subsidiaries and the petition therefor is not
controverted
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within 10 days
after service of notice of such case on such Credit Party or such Material Subsidiary, or is not
dismissed within 60 days after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of
any Credit Party or any of its Material Subsidiaries; or any Credit Party or any of its Material
Subsidiaries commences any other proceeding under any reorganization, arrangement, adjustment of
debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to any Credit Party or any of its Material
Subsidiaries; or there is commenced against any Credit Party or any of its Material Subsidiaries
any such proceeding which remains undismissed for a period of 60 days; or any Credit Party or any
of its Material Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or any Credit Party or any of its Material
Subsidiaries suffers any appointment of any custodian or the like for it or any substantial part of
its property to continue undischarged or unstayed for a period of 60 days; or any Credit Party or
any of its Material Subsidiaries makes a general assignment for the benefit of creditors; or any
corporate action is taken by any Credit Party or any of its Material Subsidiaries for the purpose
of effecting any of the foregoing; or
9.06 ERISA. (a) A single-employer plan (as defined in Section 4001 of ERISA) maintained or contributed
to by any Credit Party or any of its Subsidiaries or any ERISA Affiliate shall fail to maintain the
minimum funding standard required by Section 412 of the Code for any plan year or part thereof or a
waiver of such standard or extension of any amortization period is sought or granted under Section
412 of the Code or shall provide security to induce the issuance of such waiver or extension, (b)
any Plan is or shall have been terminated or the subject of termination proceedings under ERISA or
an event has occurred entitling the PBGC to terminate a Plan under Section 4042(a) of ERISA, (c)
any Plan shall have an Unfunded Current Liability, (d) the Borrower or any Subsidiary or any ERISA
Affiliate has incurred or is likely to incur a material liability to or on account of a termination
of or a withdrawal from a Plan under Section 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA,
(e) the Borrower or any Subsidiary has incurred after the Fifth Restatement Effective Date
liabilities (after giving effect to any reserves applicable thereto and maintained on the Fifth
Restatement Effective Date) pursuant to one or more employee welfare benefit plans (as defined in
Section 3(1) of ERISA) which provide benefits to retired employees (other than as required by
Section 601 of ERISA) or employee pension benefit plans (as defined in Section 3(2) of ERISA)
(except in each case solely as a result of a change in estimate or adjustment of liabilities
existing on the Fifth Restatement Effective Date upon the adoption or implementation of Financial
Accounting Statement 106), or (f) the Borrower or any Subsidiary or any ERISA Affiliate has
incurred a liability under Section 409, 502(i) or 502(l) of ERISA or Section 4971 or 4975 of the
Code; and there shall result from any such event or events described in the preceding clauses of
this Section 9.06 the imposition of a Lien upon the assets of the Borrower or any Subsidiary, the
granting of a security interest, or a liability or a material risk of incurring a liability, which
Lien, security interest or liability would reasonably be expected to have a Material Adverse
Effect; or
9.07 Guaranties. (i) Any Guaranty or any provision thereof shall cease to be in
full force or effect, (ii) any Guarantor or any Person acting by or on behalf thereof shall deny or
disaffirm such Guarantor’s obligations under its Guaranty or (iii) any Guarantor shall default in
the due performance or observance of any term, covenant or agreement on its part to be performed or
observed pursuant to its Guaranty and, in the case of a default in the
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performance of the covenant
therein not to violate the provisions of Section 7 hereof, such default shall continue unremedied
for a period of at least 30 days after written notice to the Borrower from the Administrative
Agent; or
9.08 Judgments. One or more judgments or decrees shall be entered against any Credit
Party or any of its Material Subsidiaries involving a liability of $200,000,000 or more in the
aggregate for all such judgments and decrees for the Credit Parties and their Material Subsidiaries
(to the extent not paid or fully covered by insurance) and any such judgments or decrees shall not
have been vacated, discharged or stayed or bonded pending appeal within 60 days from the entry
thereof; or
9.09 Security Documents. At any time the Security Documents are in effect (or required to be in effect pursuant to
Section 7.10), (a) any Security Document shall cease to be in full force and effect, or shall cease
to give the Collateral Agent the Liens or any of the material rights, powers and privileges
purported to be created thereby in favor of the Collateral Agent, or (b) any Credit Party shall
default in the due performance or observance of any material term, covenant or agreement on its
part to be performed or observed pursuant to any such Security Document and such default (other
than a default arising from the failure to deliver Collateral) shall continue unremedied for a
period of at least 30 days after written notice to the Borrower by the Collateral Agent;
provided, however, that the failure to have a perfected Lien on Collateral as
required hereunder in favor of the Collateral Agent shall not give rise to an Event of Default
under this Section 9.09, unless the aggregate Fair Market Value of all Collateral over which the
Collateral Agent fails to have a perfected Lien equals or exceeds $10,000,000; or
9.10 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the Required Lenders, by
written notice to the Borrower, take any or all of the following actions, without prejudice to the
rights of any Lead Agent or any Lender to enforce its claims against the Borrower, except as
otherwise specifically provided for in this Agreement (provided that, if an Event of
Default specified in Section 9.05 shall occur with respect to the Borrower, the result which would
occur upon the giving of written notice by the Administrative Agent as specified in clauses (i) and
(ii) below shall occur automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon all Commitments of each Lender shall forthwith terminate
immediately and any Commitment Fee theretofore accrued shall forthwith become due and payable
without any other notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and all other Obligations owing hereunder and thereunder to be, whereupon the
same shall become, forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; (iii) terminate any Letter of Credit
which may be terminated in accordance with its terms; (iv) direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the occurrence of an Event of Default
specified in Section 9.05 with respect to the Borrower, it will pay) to the Administrative Agent at
the Administrative Agent’s Office such additional amounts of cash, to be held as security for the
Borrower’s reimbursement obligations for Drawings that may subsequently occur thereunder, equal to
the aggregate Stated Amount of all Letters of Credit
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issued and then outstanding; and/or (v) direct
the Collateral Agent to enforce any or all of the Security Documents then in effect.
Notwithstanding anything contained in the foregoing paragraph, if at any time within 60 days after
an acceleration of the Loans pursuant to the preceding paragraph, the Borrower shall pay all
arrears of interest and all payments on account of principal which shall have become due otherwise
than by acceleration (with interest on principal and, to the extent permitted by law, on overdue
interest, at the rates specified in this Agreement) and all Events of Default and Defaults (other
than non-payment of the principal of and accrued interest on the Loans, in each case which is due
and payable solely by virtue of acceleration) shall be remedied or waived pursuant
to Section 12.12, then Non-Defaulting Lenders holding at least 66-2/3% of the Aggregate RL
Outstandings at such time (which Lenders shall include in any event each Lead Agent) by written
notice to the Borrower, may at their option rescind and annul the acceleration and its
consequences; but such action shall not affect any subsequent Event of Default or Default or impair
any right consequent thereon. The provisions of this paragraph are intended merely to bind the
Lenders to a decision which may be made at the election of the aforesaid percentage of the Lenders
and are not intended to benefit the Borrower and do not grant the Borrower the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions set forth herein are
met.
SECTION 10. Definitions. As used herein, the following terms shall have the meanings
herein specified unless the context otherwise requires. Defined terms in this Agreement shall
include in the singular number the plural and in the plural the singular:
“Acquired Entity or Business” shall mean either (a) the assets constituting a
business, division or product line of any Person not already a Subsidiary of the Borrower or (b)
100% of the Equity Interests of any such Person, which Person shall, as a result of the acquisition
of such Equity Interests, become a Wholly-Owned Domestic Subsidiary of the Borrower (or shall be
merged with and into the Borrower or another Wholly-Owned Domestic Subsidiary of the Borrower, with
the Borrower or such Wholly-Owned Domestic Subsidiary being the surviving or continuing Person).
“Acquisition” shall mean the acquisition by the Borrower of the Conwood Subsidiaries
and their respective Subsidiaries and NA Holdings, Inc. in accordance with the terms of the
Purchase Agreement, dated as of April 24, 2006, by and among Xxxx X. Xxxxxx, Xxxxxxxx X. Xxxxxxxxx
and Xxxxxx X. Xxxxxxxx, as trustees, GP Investors, L.L.C. and the Borrower, as the same may be
amended, modified and/or supplemented from time to time in accordance with the terms thereof.
“Acquisition Corp.” shall mean RJR Acquisition Corp., a Delaware corporation.
“Additional Acquisition Senior Notes” shall mean Additional Senior Notes issued to
finance a Permitted Acquisition and designated as “Additional Acquisition Senior Notes” by the
Borrower in writing to the Administrative Agent at the time of the issuance thereof.
“Additional Security Documents” shall have the meaning provided in Section 7.10(d).
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“Additional Senior Notes” shall mean (x) the 2007 New Senior Notes and (y) one or more
issuances of senior notes issued by the Borrower, the net cash proceeds of which are used to
finance a Permitted Acquisition, all of the terms and conditions of which (and of the indenture
governing the same) are substantially identical to (or, from the perspective of the Lenders, more
favorable than) those applicable to the Initial New Senior Notes (and the New Senior Notes
Indenture as in effect on the date of issuance of the Initial New Senior Notes), without giving
effect to any repayment of such Initial New Senior Notes; provided that (i) the final
stated maturity of any such senior notes may differ from that of the Initial New Senior
Notes, so long as the final stated maturity of any such senior notes shall be no shorter than
that the date occurring one year after the Final RL Maturity Date in effect at the time of issuance
of such senior notes, (ii) the interest rate and principal amount of any such senior notes may
differ from that of the Initial New Senior Notes and (iii) the definitive documentation with
respect to any such senior notes may include a change of control offer to purchase on terms
identical to (or from the perspective of the Borrower, no less favorable than) those provided for
in the 2007 New Senior Notes Documents.
“Administrative Agent” shall mean JPMCB, in its capacity as administrative agent for
the Lenders hereunder, and shall include any successor thereto appointed pursuant to Section 11.09.
“Administrative Agent’s Office” shall mean the office of the Administrative Agent
located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office in New York City as the
Administrative Agent may hereafter designate in writing as such to the other parties hereto.
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common control with such Person.
A Person shall be deemed to control a corporation if such Person possesses, directly or
indirectly, the power (i) to vote 20% or more of the securities having ordinary voting power for
the election of directors of such corporation or (ii) to direct or cause the direction of the
management and policies of such corporation, whether through the ownership of voting securities, by
contract or otherwise.
“Agent” shall mean the Administrative Agent, the Syndication Agent, each Documentation
Agent and the Co-Documentation Agent.
“Aggregate Consideration” shall mean, with respect to any Permitted Acquisition, the
sum (without duplication) of (i) the aggregate amount of all cash paid (or to be paid) by the
Borrower or any of its Subsidiaries in connection with such Permitted Acquisition (including,
without limitation, payments of fees and costs and expenses in connection therewith) and all
contingent cash purchase price, earn-out and other similar obligations of the Borrower and its
Subsidiaries (including payments for non-compete agreements benefiting the Borrower or its
Subsidiaries) incurred and reasonably expected to be incurred in connection therewith (as
determined in good faith by the Borrower), (ii) the aggregate principal amount of all
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Indebtedness
assumed, incurred, refinanced and/or issued in connection with such Permitted Acquisition to the
extent permitted by Section 8.04, and (iii) the Fair Market Value of all other consideration
payable in connection with such Permitted Acquisition; provided that the Fair Market Value
of shares of common stock of the Borrower issued (or to be issued) as consideration in connection
with such Permitted Acquisition shall be excluded from any determination of “Aggregate
Consideration”.
“Aggregate RL Outstandings” shall have the meaning provided in Section 4.02(a).
“Agreement” shall mean the Original Credit Agreement as amended and restated pursuant
to the First Amended and Restated Credit Agreement, as further amended and restated pursuant to the
Second Amended and Restated Credit Agreement, as further amended and restated pursuant to the Third
Amended and Restated Credit Agreement, as further amended and restated pursuant to the Fourth
Amended and Restated Credit Agreement and as further amended and restated pursuant to this Fifth
Amended and Restated Credit Agreement, as so amended and restated and as the same may be further
amended, restated, modified and/or supplemented from time to time.
“ Applicable Corporate Credit Rating” shall mean, at any time, the corporate
rating level (a rating level being, e.g., each of BBB-, BBB and BBB+, in the case of S&P)
assigned by a given Rating Agency to the Borrower.
“ Applicable Facilities Credit Rating” shall mean, at any time, the rating
level (a rating level being, e.g., each of BBB-, BBB and BBB+, in the case of S&P) assigned
by a given Rating Agency to the Facilities.
“Applicable Margin” shall mean, at any time, with respect to Revolving Loans or the
Commitment Fee, the respective percentage per annum set forth below under the respective Type of
Revolving Loan or the Commitment Fee, as the case may be, and opposite the respective Applicable
Facilities Credit Ratings indicated to have been achieved at such time:
| “Applicable | ||||||
| Applicable | Margin” | for | ||||
| Facilities Credit | “Applicable Margin” | Reference Rate | “Applicable Margin” | |||
| Ratings Levels | for Eurodollar Loans | Loans | for Commitment Fee | |||
Greater than or
equal to Baa1 and
BBB+ |
1.00% | 0.25% | 0.25% | |||
Baa2 and BBB |
1.25% | 0.25% | 0.375% | |||
Baa3 and BBB- |
1.375% | 0.375% | 0.50% | |||
Ba1 and BB+ |
1.625% | 0.625% | 0.625% | |||
Ba2 and BB |
1.75% | 0.75% | 0.75% | |||
Equal to or less
than Ba3 and BB-
(or no Applicable
Facilities Credit
Rating is available
from either Rating
Agency) |
2.00% | 1.00% | 1.00% |
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; provided that (i) for purposes of the preceding pricing grid, if at any time the
Applicable Facilities Credit Ratings assigned by the Rating Agencies are “split” (i.e., are
not at the same corresponding level on the pricing grid above), then the Applicable Margins shall
be determined by reference to the lower Applicable Facilities Credit Rating assigned by the
relevant Rating Agency, (ii) if no Applicable Facilities Credit Rating is available from either
Rating Agency on the Closing Date, the “Applicable Margin” for the period from the Closing Date
until the earlier of August 31, 2007 and the date on which Applicable Facilities Credit Ratings are
available from each Rating Agency shall be determined as if the Applicable Facilities Credit
Ratings assigned by the Rating Agencies were Baa2 and BBB, and (iii) notwithstanding the foregoing,
at all times during which there shall exist any Default or any Event of Default, the Applicable
Margins shall be determined pursuant to the pricing grid above on the same basis as if no
Applicable Facilities Credit Rating were available from either Rating Agency.
“Approved Alternate Currency” shall mean Euros, Pounds Sterling or any other currency
(other than U.S. Dollars) approved by the Letter of Credit Issuer; provided that, at such
time, (i) such other currency is dealt with in the London interbank deposit market, (ii) such other
currency is freely transferable and convertible into Dollars in the London foreign exchange market,
and (iii) no central bank or other governmental authorization in the country of issue of such
currency is required to permit use of such currency by any RL Lender for issuing any Letter of
Credit and/or to permit the Borrower to repay Unpaid Drawings thereon and/or to pay any other
amounts owing in respect of such Letter of Credit (unless such authorization has been obtained and
is in full force and effect).
“Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a fund
which invests in bank loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
“Asset Sale” shall mean any sale, transfer or other disposition of any asset by the
Borrower or any of its Subsidiaries to any Person (including by way of redemption by such Person)
other than to the Borrower or a Wholly-Owned Subsidiary of the Borrower.
“Assignment Agreement” shall have the meaning provided in Section 12.04(b)(A).
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“Authorized Officer” shall mean, with respect to (i) delivering Notices of Borrowing,
Notices of Conversion, Letter of Credit Requests and similar administrative notices, any person or
persons that has or have been (x) authorized by the board of directors of the Borrower or (y)
designated by a person authorized by the board of directors of the Borrower, in each case, to
deliver such notices pursuant to this Agreement and that has or have appropriate signature cards on
file with the Administrative Agent and the respective Letter of Credit Issuer; (ii) delivering
financial information and officer’s certificates pursuant to this Agreement, the chief financial
officer, chief accounting officer, controller or other senior financial officer of the
Borrower designated as such in writing to the Administrative Agent by the Borrower, in each
case to the extent acceptable to the Administrative Agent; and (iii) any other matter in connection
with this Agreement or any other Credit Document, any officer (or a person or persons so designated
by any two officers) of the Borrower.
“B&W Parent” shall mean Xxxxx & Xxxxxxxxxx Holdings, Inc. (f/k/a Xxxxx & Xxxxxxxxxx
Tobacco Corporation), a Delaware corporation.
“Bankruptcy Code” shall have the meaning provided in Section 9.05.
“Base Rate” shall mean, for any day, the publicly announced prime rate on such date of
JPMCB.
“Borrower” shall have the meaning provided in the first paragraph of this Agreement.
“Borrower Common Stock” shall mean the common stock, par value $0.0001 per share, of
the Borrower.
“Borrower Guaranty” shall mean, collectively, the guaranty of the Borrower pursuant to
Section 13 of this Agreement.
“Borrower Preferred Stock” shall mean the Series B preferred stock, par value $0.01
per share, of the Borrower, having the terms set forth in the Articles of Incorporation of the
Borrower.
“Borrowing” shall mean and include the incurrence of one Type of Loan of a single
Tranche by the Borrower from all of the Lenders having Commitments of the respective Tranche (or
from the Swingline Lenders in the case of Swingline Loans) on a pro rata basis on a
given date (or resulting from conversions on a given date), having in the case of Eurodollar Loans
the same Interest Period, provided that Reference Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of any related Borrowing of Eurodollar Loans.
“Business Day” shall mean (i) for all purposes other than as covered by clause (ii)
below, any day excluding Saturday, Sunday and any day which shall be in the City of New York a
legal holiday or a day on which banking institutions are authorized by law or other governmental
actions to close and (ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described
in clause (i) and which is also a day for trading by and between banks in U.S. dollar deposits in
the interbank Eurodollar market.
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“Calculation Period” shall mean, with respect to any Permitted Acquisition, any
Significant Asset Sale or any other event expressly required to be calculated on a Pro
Forma Basis pursuant to the terms of this Agreement, the Test Period most recently ended
prior to the date of such Permitted Acquisition, Significant Asset Sale or other event for which
financial statements have been delivered to the Administrative Agent pursuant to this Agreement.
“Calyon” shall mean Calyon New York Branch and any successor corporation thereto by
merger, consolidation or otherwise.
“Capital Expenditures” shall mean, with respect to any Person, all expenditures by
such Person which should be capitalized in accordance with GAAP and, without duplication, the
amount of Capitalized Lease Obligations incurred by such Person; provided that the term
“Capital Expenditures” shall in any event exclude (A) expenditures made by such Person in
connection with the replacement, substitution or restoration of assets (i) to the extent financed
from insurance proceeds paid on account of the loss of or damage to the assets being replaced or
restored, (ii) with awards of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced or (iii) with proceeds of asset sales made in accordance
with Section 8.02 and (B) the purchase price paid by such Person in connection with any Investment
Equities.
“Capital Lease”, as applied to any Person, shall mean any lease of any property
(whether real, personal or mixed) by that Person as lessee which, in conformity with GAAP, is, or
is required to be, accounted for as a capital lease on the balance sheet of that Person.
“Capitalized Lease Obligations” shall mean all obligations under Capital Leases of the
Borrower or any of its Subsidiaries in each case taken at the amount thereof accounted for as
liabilities in accordance with GAAP.
“CGMI” shall mean Citigroup Global Markets Inc. and any successor corporation thereto
by merger, consolidation or otherwise.
“Change of Control” shall mean and include (a) at any time Continuing Directors shall
not constitute a majority of the Board of Directors of the Borrower; (b) any Person or “group”
(within the meaning of Rule 13d-3 and 13d-5 of the of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) (other than B&W Parent), shall acquire, directly or
indirectly, beneficial ownership (within the meaning of Rule 13d-3 and 13d-5 of the Exchange Act)
of 30% or more, on a fully diluted basis, of the economic or voting interest in the Borrower’s
capital stock, (c) B&W Parent and/or any other Person or “group” (within the meaning of Rules 13d-3
and 13d-5 of the Exchange Act) shall have obtained and exercised the power to elect or designate a
majority of the Board of Directors of the Borrower and (d) any “change of control” (or similar
event) under the New Senior Notes Documents which gives rise to an “offer to purchase” New Senior
Notes pursuant to the terms of the New Senior Notes Documents.
“CLO” shall mean any entity (whether a corporation, partnership, trust or otherwise)
that is engaged in making, purchasing, holding or otherwise investing in loans and
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similar
extensions of credit in the ordinary course of its business and is administered or managed by a
Lender or an Affiliate of such Lender.
“Co-Documentation Agent” shall mean Xxxxxx Xxxxxxx Senior Funding, Inc.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder. Section references to the
Code are to the Code, as in effect at the date of this Agreement and any subsequent provisions
of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Collateral” shall mean all property (whether real, personal or otherwise) with
respect to which any security interests have been granted (or purported to be granted) pursuant to
any Security Document (including, without limitation, all Mortgaged Properties and all cash,
Marketable Investments and other cash equivalents delivered as collateral pursuant to Section
4.02(a) or 9).
“Collateral Agent” shall mean the Administrative Agent acting as Collateral Agent
under the Security Documents.
“Commitment” shall mean any of the commitments of any Lender to extend credit to the
Borrower pursuant to this Agreement, i.e., a Revolving Loan Commitment or a Swingline
Commitment.
“Commitment Fee” shall have the meaning provided in Section 3.01(a).
“Commodities Agreement” shall mean any forward contract, futures contract, option
contract or similar agreement or arrangement, in each case intended to protect the Persons entering
into same from fluctuations in the price of, or shortage of supply of, commodities.
“Company” shall mean any corporation, limited liability company, partnership or other
business entity (or the adjectival form thereof, where appropriate).
“Consolidated Cash Interest Expense” shall mean, for any period, the sum of (x) the
remainder of (i) consolidated interest expense of the Borrower and its Subsidiaries (excluding,
however, to the extent included in such consolidated interest expense, (I) non-cash interest
expense and (II) amortization of debt issuance cost) minus (ii) consolidated cash interest
income of the Borrower and its Subsidiaries, plus (y) the product of (i) the amount of all
cash Dividend requirements to Persons other than Borrower or any of its Subsidiaries (whether or
not declared or paid) on Disqualified Preferred Stock of the Borrower and any Preferred Equity
Interests of any of its Subsidiaries paid, accrued or scheduled to paid or accrued during such
period multiplied by (ii) a fraction, the numerator of which is one and the denominator of which is
one minus the then current effective consolidated Federal, state, local and foreign income tax rate
(expressed as a decimal number between one and zero) of the Borrower as reflected in the audited
consolidated financial statements of the Borrower for its most recently completed fiscal year,
which amounts described in preceding clause (y) shall be treated as interest expense of the
Borrower and its Subsidiaries for purposes of this definition regardless of the treatment of such
amounts under GAAP, it being understood that the determination of the amounts specified in
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clauses
(x)(i)(I) and (x)(i)(II) shall be made on a basis consistent with the methodology utilized by the
Borrower to determine such amounts on the Fifth Restatement Effective Date.
“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such
period (without giving effect to (x) any extraordinary gains or extraordinary losses, (y) any
non-cash income or charges (to the extent such non-cash income or charges, as the case may be, do
not give rise to any cash receipt or payment, as the case may be, in a future period), and (z) any
gains or losses from sales of assets other than inventory sold in the ordinary course of
business) adjusted by (I) adding thereto (in each case to the extent deducted in determining
Consolidated Net Income for such period), without duplication, the amount of (i) total interest
expense (inclusive of amortization of deferred financing fees and other original issue discount and
banking fees, charges and commissions (e.g., letter of credit fees and commitment fees)) of
the Borrower and its Subsidiaries determined on a consolidated basis for such period, (ii)
provision for taxes based on income and foreign withholding taxes for the Borrower and its
Subsidiaries determined on a consolidated basis for such period, (iii) all depreciation and
amortization expense of the Borrower and its Subsidiaries determined on a consolidated basis for
such period, (iv) in the case of any period which includes any portion of any fiscal quarter ended
after the Fourth Restatement Effective Date and on or prior to December 31, 2007, an amount equal
to the Post-Closing Integration Charges actually recorded or accrued during such period, (v) in the
case of any period including the fiscal quarters of the Borrower ended June 30, 2006 and September
30, 2006, the amount of all fees and expenses incurred in connection with the Conwood Transaction
during such fiscal quarters and (vi) in the case of any period including the fiscal quarters of the
Borrower ended June 30, 2007 and September 30, 2007, the amount of all fees and expenses incurred
in connection with the Transaction during such fiscal quarters and (II) subtracting therefrom the
amount of all cash payments made by the Borrower and its Subsidiaries during such period pursuant
to any settlement with respect to tobacco liability which otherwise did not reduce Consolidated Net
Income for such period or a prior period. For the avoidance of doubt, it is understood and agreed
that, to the extent any amounts are excluded from Consolidated Net Income by virtue of the proviso
to the definition thereof contained herein, any add backs to Consolidated Net Income in determining
Consolidated EBITDA as provided above shall be limited (or denied) in a fashion consistent with the
proviso to the definition of Consolidated Net Income contained herein.
“Consolidated Indebtedness” shall mean, at any time, the sum of (without duplication)
(i) all indebtedness of Borrower and its Subsidiaries for borrowed money (including obligations
evidenced by bonds, notes or similar instruments), (ii) the aggregate amount of all Capitalized
Lease Obligations of Borrower, (iii) all Indebtedness of the types described in clause (i), (ii),
(iii), (iv), or (v) of this definition secured by any Lien on any property owned by Borrower or any
of its Subsidiaries, whether or not such Indebtedness has been assumed by such Person
(provided that, if the Person has not assumed or otherwise become liable in respect of such
Indebtedness, such Indebtedness shall be deemed to be in an amount equal to the lesser of (x) the
amount of such Indebtedness that is secured by such Lien or (y) the fair market value of the
property to which such Lien relates as determined in good faith by such Person), (iv) all
Contingent Obligations of Borrower and any of its Subsidiaries for Indebtedness of another Person
(regardless of any contrary treatment under GAAP), and (v) all Indebtedness of Borrower and its
Subsidiaries of the type described in clauses (ii), (iii), (iv) and (viii) of the definition of
Indebtedness contained herein; provided that for purposes of this definition, (x) the
amount of
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Indebtedness in respect of Hedging Agreements shall be at any time the unrealized net
loss position, if any, of Borrower and/or its Subsidiaries thereunder on a marked-to-market basis
determined no more than one month prior to such time, (y) Indebtedness (including Contingent
Obligations) in respect of surety bonds issued in the ordinary course of business and consistent
with the past practices of Borrower and its Subsidiaries as in effect on the Fifth Restatement
Effective Date (excluding, however, for avoidance of doubt, any Litigation Bond) shall be excluded
in any determination of “Consolidated Indebtedness” and (z) to the extent issued to any Person
other than Borrower or any of its Subsidiaries, any Disqualified Preferred Stock of the
Borrower and any Preferred Equity Interests of any of its Subsidiaries shall be treated as
Indebtedness, with an amount equal to the greater of the liquidation preference or the maximum
mandatory fixed repurchase price of any such outstanding Preferred Equity Interests deemed to be a
component of Consolidated Indebtedness.
“Consolidated Interest Coverage Ratio” shall mean, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Cash Interest Expense for such period;
provided that for purposes of any calculation of the Consolidated Interest Coverage Ratio
pursuant to Section 8.05(d), Section 8.09(l) and the definition of “Incremental Commitment
Requirements” only, Consolidated EBITDA and Consolidated Cash Interest Expense shall be determined
on a Pro Forma Basis in accordance with the requirements of the definition of
“Pro Forma Basis” contained herein.
“Consolidated Net Income” shall mean, for any period, the net income (or loss) of the
Borrower and its Subsidiaries determined on a consolidated basis for such period (taken as a single
accounting period) in accordance with GAAP, provided that the following items shall be
excluded in computing Consolidated Net Income (without duplication): (i) the net income (or loss)
of any Person in which a Person or Persons other than the Borrower and its Wholly-Owned
Subsidiaries has an Equity Interest or Equity Interests to the extent of such Equity Interests held
by Persons other than the Borrower and its Wholly-Owned Subsidiaries in such Person, (ii) except
for determinations expressly required to be made on a Pro Forma Basis, the net
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary or all or
substantially all of the property or assets of such Person are acquired by a Subsidiary and (iii)
the net income of any Subsidiary to the extent that the declaration or payment of cash dividends or
similar cash distributions by such Subsidiary of such net income is not at the time permitted by
the operation of the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Subsidiary.
“Consolidated Total Leverage Ratio” shall mean, at any time, the ratio of (x)
Consolidated Indebtedness at such time to (y) Consolidated EBITDA for the Test Period then most
recently ended; provided that (i) for purposes of any calculation of the Consolidated Total
Leverage Ratio pursuant to this Agreement, Consolidated EBITDA shall be determined on a Pro
Forma Basis in accordance with clause (iii) of the definition of “Pro Forma
Basis” contained herein and (ii) for purposes of any calculation of the Consolidated Total Leverage
Ratio pursuant to Section 8.05(d), Section 8.09(l) and the definition of “Incremental Commitment
Requirements” only, Consolidated Indebtedness shall be determined on a Pro Forma
Basis in accordance with the requirements of the definition of “Pro Forma Basis”
contained herein.
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“Contingent Obligations” shall mean, as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other monetary
obligations including reimbursement obligations in respect of litigation bonds (the “primary
obligations”) of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, including, without limitation, any obligation of such Person, whether or
not contingent, (a) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (d) otherwise to assure or hold harmless the owner of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary course of business.
The amount of any Contingent Obligation shall be deemed to be an amount equal to the lesser of (x)
the maximum stated or determinable amount of such Contingent Obligation and (y) the stated or
determinable amount of the primary obligation in respect of which such 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.
“Continuing Director” shall mean, at any date, an individual (x) who is a member of
the Board of Directors of Borrower on the Fifth Restatement Effective Date, (y) who, as at such
date, has been a member of such Board of Directors for at least the twelve preceding months, or (z)
who has been nominated, or designated by B&W Parent pursuant to a governance agreement, to be a
member of such Board of Directors by a majority of the other Continuing Directors then in office.
“Continuing Lender” shall mean, at any time, (i) each RL Lender that has a RL Maturity
Date which is the Final RL Maturity Date and (ii) each RL Lender that has then consented to the
extension of its then RL Maturity Date to the newly proposed Final RL Maturity Date pursuant to
Section 1.17 on or prior to the respective first Extension Response Date in circumstances where
Continuing Lenders (as defined in preceding clause (i)) holding at least a majority of the
Revolving Loan Commitments have not consented to an extension of the Final RL Maturity Date on or
prior to such date.
“Conwood Subsidiaries” shall mean, collectively, (i) Conwood Company, LLC, (ii)
Conwood Sales Co., LLC, (iii) Rosswil LLC and (iv) Xxxxx Tobacco LLC.
“Conwood Transaction” shall mean, collectively, (i) the consummation of the
Acquisition and the other transactions contemplated by the documents related thereto, (ii) the
execution, delivery and performance by certain Credit Parties of the Initial New Senior Note
Documents to which they are a party, the issuance of the Initial New Senior Notes and use of
proceeds thereof, (iii) the execution, delivery and performance by certain Credit Parties of the
Credit Documents to which they are a party, (iv) the occurrence of the Fourth Restatement Effective
Date and the issuance of the term loans and other extensions of credit thereunder on such date, (v)
the execution and delivery of (a) that certain Assignment and Assumption
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Agreement dated as of the
Fourth Restatement Effective Date between X.X. Xxxxxxxx Tobacco Holdings, Inc. and Borrower and (b)
that certain Assumption and Indemnification Agreement dated as of the Fourth Restatement Effective
Date between X.X. Xxxxxxxx Tobacco Holdings, Inc. and Borrower, (vi) the issuance of, and the
making of any intercompany loans evidenced by, that certain Promissory Note dated as of the Fourth
Restatement Effective Date between X.X. Xxxxxxxx Tobacco Holdings, Inc. and Borrower and pledged to
the Collateral Agent therewith, and (vii) the payment of all fees and expenses in connection with
the foregoing.
“Credit Card Issuer” shall mean JPMCB or any of its affiliates (even if JPMCB ceases
to be a Lender under the Credit Agreement for any reason) and their respective successors or
assigns.
“Credit Documents” shall mean this Agreement, the Notes, the Subsidiary Guaranty, the
Intercompany Subordination Agreement and (if then in effect) the Security Documents.
“Credit Event” shall mean and include the making of a Loan and/or the issuance of a
Letter of Credit.
“Credit Party” shall mean each of the Borrower and each Subsidiary Guarantor.
“Currency Agreement” shall mean any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar agreement designed to
protect the Persons entering into same against fluctuations in currency values.
“Default” shall mean any event, act or condition which with notice or lapse of time,
or both, would constitute an Event of Default.
“Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in
effect.
“Disqualified Preferred Stock” shall mean any Preferred Equity Interests of the
Borrower other than Qualified Preferred Stock.
“Dividends” shall have the meaning provided in Section 8.05.
“Documentation Agent” shall mean each of General Electric Capital Corporation, Xxxxxx
Commercial Paper Inc. and Mizuho Corporate Bank, Ltd. and any successor to any such Person, by
merger, consolidation or otherwise.
“Documents” shall mean and include (i) the Credit Documents, (ii) the New Senior Notes
Documents and (iii) all other material documents, agreements and instruments executed in connection
with the Transaction.
“Domestic Subsidiary” shall mean, as to any Person, any Subsidiary of such Person
incorporated or organized in the United States or any State or territory thereof.
“Drawing” shall have the meaning provided in Section 2.04(b).
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“Eligible Transferee” shall mean and include a commercial bank, financial institution
or other “accredited investor” (as defined in SEC Regulation D); provided that Eligible
Transferee shall not include any Person (or any Affiliate thereof) who competes with the Borrower
and its Subsidiaries in the tobacco business.
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release or threatened release of
any Hazardous Material or to health and safety matters.
“Environmental Liability” means any liability, contingent or otherwise (including any
liability or damages, costs or environmental remediation, fines or penalties or indemnities), of
the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
“Equity Interests” of any Person shall mean any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of or interest in (however
designated) equity of such Person, including any common stock, preferred stock, any limited or
general partnership interest and any limited liability company membership interest.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder. Section
references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent
provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which
together with the Borrower, any Subsidiary or any Credit Party would be deemed to be a “single
employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“Eurodollar Loans” shall mean each Revolving Loan bearing interest at the rates
provided in Section 1.08(b).
“Eurodollar Rate” shall mean, with respect to each Interest Period for a Eurodollar
Loan, (i) the rate per annum that appears on page 3750 of the Dow Xxxxx Telerate Screen (or any
successor page) for Dollar deposits with maturities comparable to such Interest Period as of 11:00
A.M. (London time) on the date which is two (2) Business Days prior to the commencement of such
Interest Period or, if such a rate does not appear on page 3750 of the Dow Xxxxx Telerate Screen
(or any successor page), the offered quotations to first-class banks in the London interbank market
by JPMCB for Dollar deposits of amounts in same day funds comparable to the outstanding principal
amount of such Dollar denominated Loan with maturities comparable to such Interest Period
determined as of 11:00 A.M. (London time) on the
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date which is two Business Days prior to the
commencement of such Interest Period divided (and rounded upward to the next whole multiple of
1/1,000 of 1%) by (ii) a percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency, supplemental, special or
other reserves) applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency liabilities as defined in Regulation D (or any successor category of liabilities under
Regulation D).
“Event of Default” shall have the meaning provided in Section 9.
“Exchange Senior Notes” shall mean, collectively, the senior notes issued by the
Borrower pursuant to the New Senior Notes Indenture in exchange for Existing Senior Notes pursuant
to the “Note Exchange Offer” described in that certain Offer to Exchange and Consent Solicitation
Statement, dated May 19, 2006, having terms (other than interest rate and tenor) identical to the
Initial New Senior Notes, in each case as the same may be amended, modified, and/or supplemented
from time to time in accordance with the terms hereof and thereof.
“Excluded Collateral” shall mean (i) the Equity Interests of each Subsidiary of RJRTH
(other than Xxxxxxxx Tobacco) and the Excluded Joint Ventures, (ii) the leasehold interest and
rights of Xxxxxxxx Tobacco in and to property located at the Xxxxxxx Xxxxx Xxxxxxxx Airport, under
a certain lease agreement with the Airport Commission of Forsyth County, dated January 1, 1980,
recorded in Book 1298, Page 1365, Forsyth County Registry, and assigned and transferred to Xxxxxxxx
Tobacco by its former parent company pursuant to an Assignment of Lease, dated April 27, 1989, to
the extent the grant of a leasehold mortgage in such leasehold is prohibited by the terms thereof,
and (iii) any property or asset of Santa Fe or Lane other than (x) intellectual property and (y)
any property or asset a security interest in which can be perfected by the filing of a UCC
financing statement in any relevant jurisdiction.
“Excluded Joint Ventures” shall mean and include Targacept, Inc., Large Scale Biology
Corporation and Technology Concepts and Design, Inc.
“Existing Debt” shall mean the Indebtedness of the Subsidiaries of the Borrower
outstanding on the Fifth Restatement Effective Date and set forth in Annex VII (other than
Indebtedness evidenced by New Senior Notes and Existing Senior Notes), provided that such
Indebtedness (excluding intercompany Indebtedness among the Borrower and its Subsidiaries) shall
not exceed $89,000,000 in aggregate outstanding principal amount.
“Existing Interest Rate Swap Agreement” shall mean that certain Interest Rate Swap,
dated as of May 16, 2002, between the Borrower and Calyon (Ref #32834), as in effect on the Fourth
Restatement Effective Date.
“Existing Letter of Credit” shall have the meaning provided in Section 2.01(c).
“Existing Liens” shall mean the Liens on the assets and properties of the Subsidiaries
of the Borrower outstanding on the Fifth Restatement Effective Date and set forth in Annex VI,
provided that the Indebtedness secured by all such Liens shall not exceed $3,000,000 in
aggregate outstanding principal amount.
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“Existing Mortgage Policies” shall mean the Mortgage Policies for each Existing
Mortgaged Property pursuant to the Fourth Amended and Restated Credit Agreement.
“Existing Mortgaged Properties” shall mean all real property of the Borrower and its
Subsidiaries listed on Annex VIII and designated as “Existing Mortgaged Properties” therein.
“Existing Senior Notes” shall mean, collectively, (i) RJRTH’s 7.875% Notes due May 15,
2009 in an initial aggregate principal amount equal to $200,000,000, (ii) RJRTH’s
6.50% Notes due July 15, 2010 in an initial aggregate principal amount equal to $300,000,000,
(iii) RJRTH’s 7.25% Notes due June 1, 2012 in an initial aggregate principal amount equal to
$450,000,000, and (iv) RJRTH’s 7.30% Notes due July 15, 2015 in an initial aggregate principal
amount equal to $200,000,000, in each case as the same may be amended, modified and/or supplemented
from time to time in accordance with the terms hereof and thereof.
“Expected Total Revolving Loan Commitment” shall mean, at any time of determination
with respect to any future date, the Total Revolving Loan Commitment in effect at such time of
determination less the aggregate Revolving Loan Commitments of all RL Lenders with a RL
Maturity Date prior to such future date.
“Extension Date” shall mean, June 28, 2008 or June 28, 2009, as applicable;
provided that no Extension Date shall occur after June 28, 2009.
“Extension Response Date” shall have the meaning provided in Section 1.17.
“Facilities” shall mean the credit facilities evidenced by the Agreement.
“Facing Fee” shall have the meaning provided in Section 3.01(c).
“Fair Market Value” shall mean, with respect to any asset (including any Equity
Interests of any Person), the price at which a willing buyer, not an Affiliate of the seller, and a
willing seller who does not have to sell, would agree to purchase and sell such asset, as
determined in good faith by senior management of the Borrower or its respective Subsidiary making
such sale.
“Federal Funds Rate” shall mean for any period, a fluctuating interest rate equal for
each day during such period to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.
“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 3.01.
“FHS” shall mean FHS, Inc., a Delaware corporation, and any successor thereto by
merger, consolidation, reincorporation or otherwise.
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“Fifth Restatement Effective Date” shall have the meaning provided in Section 5.01.
“Fifth Restatement Execution Date” shall have the meaning provided in Section 12.10.
“Final RL Maturity Date” shall mean June 28, 2012, as such date may be extended
pursuant to Section 1.17.
“First Amended and Restated Credit Agreement” shall mean that certain Credit
Agreement, dated as of the First Restatement Effective Date between RJRTH and certain financial
institutions and the other parties thereto, as amended, modified and/or supplemented (but not
amended and restated) from time to time.
“First Restatement Effective Date” shall mean the Restatement Effective Date under,
and as defined in, the First Amended and Restated Credit Agreement.
“Fitch” shall mean Fitch Ratings.
“Fourth Amended and Restated Credit Agreement” shall have the meaning provided in the
first recital of this Agreement.
“Fourth Restatement Effective Date” shall mean the Fourth Restatement Effective Date
under, and as defined in, the Fourth Amended and Restated Credit Agreement.
“GAAP” shall mean generally accepted accounting principles in the United States of
America as in effect from time to time; it being understood and agreed that determinations in
accordance with GAAP for purposes of Section 8, including defined terms as used therein, shall be
made pursuant to Section 12.07(a).
“GMB” shall mean GMB, Inc., a North Carolina corporation.
“Government Acts” shall have the meaning provided in Section 2.06(a).
“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
“Granting Lender” shall have the meaning provided in Section 12.04.
“Guaranteed Creditors” shall mean and include the Administrative Agent, the Collateral
Agent, each Lead Agent, each Lender, each Swingline Lender, each Letter of Credit Issuer, each
Credit Card Issuer, each party (other than any Credit Party) party to (or participating in) a
Hedging Agreement to the extent such party is a Lender or an affiliate thereof (even if such Lender
subsequently ceases to be a Lender under this Agreement for any reason) and their subsequent
assigns.
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“Guaranteed Obligations” shall mean (x) all obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and
liabilities of each Guaranteed Party owing under any Secured Credit Card Agreement entered into by
such Guaranteed Party with any Credit Card Issuer, whether now in existence or hereafter arising,
and the due performance and compliance by each Guaranteed Party with all terms, conditions and
agreements contained therein and (y) all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities of
each Guaranteed Party owing under any Hedging Agreement entered into
by such Guaranteed Party with any Guaranteed Creditor, whether now in existence or hereafter
arising, and the due performance and compliance by each Guaranteed Party with all terms, conditions
and agreements contained therein.
“Guaranteed Party” shall mean the Borrower and each other Subsidiary of the Borrower
(other than any Non-Guarantor Subsidiary) party to a Secured Credit Card Agreement with any Credit
Card Issuer or a Hedging Agreement with any Guaranteed Creditor.
“Guarantor” shall mean the Borrower and each Subsidiary Guarantor.
“Guaranty” shall mean and include the Subsidiary Guaranty and the Borrower Guaranty.
“Guaranty Event” shall mean that the Applicable Corporate Credit Rating issued by at
least one Rating Agency is at least one level below the Minimum Investment Grade Rating.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
“Hedging Agreements” shall mean and include Commodities Agreements, Currency
Agreements, Interest Rate Agreements and all other similar hedging arrangements.
“Incremental Commitment Requirements” shall mean, with respect to any provision of an
Incremental RL Commitment on a given Incremental RL Commitment Date, the satisfaction of each of
the following conditions on or prior to the effective date of the respective Incremental RL
Commitment Agreement: (1) no Default or Event of Default then exists or would result therefrom;
(2) all of the representations and warranties contained herein and in the other Credit Documents
are true and correct in all material respects at such time (unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be true and correct in all
material respects as of such earlier date); (3) calculations are made by the Borrower demonstrating
compliance with the covenants contained in Sections 8.07 and 8.08 for the Calculation Period most
recently ended prior to such date of effectiveness, on a Pro Forma Basis, as if the
Revolving Loans to be made pursuant to such Incremental RL Commitments (assuming the full
utilization thereof) had been incurred on the first day of such Calculation Period; (4) the
delivery by the Borrower to the Administrative Agent of an officer’s certificate executed by an
Authorized Officer of the Borrower and certifying as to compliance with
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preceding clauses (1), (2)
and (3) and containing the calculations (in reasonable detail) required by preceding clause (3);
(5) the delivery by the Borrower to the Administrative Agent of an acknowledgement in form and
substance reasonably satisfactory to the Administrative Agent and executed by each Subsidiary
Guarantor, acknowledging that such Incremental RL Commitment and all credit extensions subsequently
made pursuant to such Incremental RL Commitment shall constitute (and be included in the definition
of) “Guaranteed Obligations” under the Subsidiary Guaranty; (6) the delivery by the Borrower to the
Administrative Agent of an opinion or opinions, in form and substance reasonably satisfactory to
the Administrative Agent, from
counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated
such date, covering such of the matters set forth in the opinions of counsel delivered to the
Administrative Agent on the Fifth Restatement Effective Date pursuant to Section 5.01 as may be
reasonably requested by the Administrative Agent, and such other matters incident to the
transactions contemplated thereby as the Administrative Agent may reasonably request, (7) the
delivery by the Borrower and the other Credit Parties to the Administrative Agent of such other
officers’ certificates, board of director resolutions and evidence of good standing as the
Administrative Agent shall reasonably request and (8) the completion by the Borrower and the other
Credit Parties of such other actions as the Administrative Agent may reasonably request in
connection with the provision of such Incremental RL Commitment.
“Incremental RL Commitment” shall mean, for any Lender, any commitment by such Lender
to make Revolving Loans pursuant to Section 1.16(b) as agreed to by such Lender in the respective
Incremental RL Commitment Agreement delivered pursuant to Section 1.16; it being understood,
however, that on each date upon which an Incremental RL Commitment of any Lender becomes effective,
such Incremental RL Commitment of such Lender shall be added to (and thereafter become a part of)
the Revolving Loan Commitment of such Lender for all purposes of this Agreement as contemplated by
Section 1.16.
“Incremental RL Commitment Agreement” shall mean each Incremental RL Commitment
Agreement in the form of Exhibit K (appropriately completed) executed in accordance with Section
1.16.
“Incremental RL Commitment Date” shall mean each date upon which an Incremental RL
Commitment under an Incremental RL Commitment Agreement becomes effective as provided in Section
1.16(b).
“Incremental RL Lender” shall have the meaning specified in Section 1.16(b).
“Indebtedness” of any Person shall mean (i) all indebtedness of such Person for
borrowed money, (ii) the deferred purchase price of assets or services which in accordance with
GAAP would be shown on the liability side of the balance sheet of such Person, (iii) the maximum
amount available to be drawn or paid under all letters of credit, bankers’ acceptances, bank
guaranties issued for the account of such Person and all unpaid drawings and unreimbursed payments
in respect of such letters of credit, bankers’ acceptances and bank guaranties, (iv) the maximum
amount available to be drawn or paid under all surety, appeal and litigation bonds and similar
obligations issued for the account of such Person and all unreimbursed payments in respect of such
surety, appeal and litigation bonds and similar obligations, (v) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether or not
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such
Indebtedness has been assumed, (vi) all Capitalized Lease Obligations of such Person, (vii) all
obligations of such Person to pay a specified purchase price for goods or services whether or not
delivered or accepted, i.e., take-or-pay and similar obligations, (viii) all obligations of
such Person under Hedging Agreements and (ix) all Contingent Obligations of such Person,
provided that Indebtedness shall not include (x) trade payables and accrued expenses, in
each case arising in the ordinary course of business and (y) any obligation of the Borrower or any
Subsidiary thereof to purchase tobacco and/or other products, services and produce utilized in its
business pursuant to agreements entered into in the ordinary course of business on a basis
consistent with
the Borrower’s or such Subsidiary’s past practices or then current industry practices; and
provided, further, that (a) for the purposes of Section 9.04, the amount of
Indebtedness represented by any Hedging Agreement shall be at any time the unrealized net loss
position, if any, of the Borrower and/or its Subsidiaries thereunder on a marked-to-market basis
determined no more than one month prior to such time and (b) for the purposes of determining the
Indebtedness permitted to be secured pursuant to Section 8.03(j) or outstanding under Section
8.04(o), the amount of Indebtedness included in such determination that is attributable to all
Hedging Agreements secured or permitted thereunder, as the case may be, shall be an amount equal to
the Net Termination Value, if any, of all such Hedging Agreements (less, in the case of any
determination of Indebtedness permitted to be outstanding under Section 8.04(o) only, the aggregate
amount of cash and cash equivalents pledged to secure obligations under all such Hedging Agreements
pursuant to customary cash collateral arrangements).
“Indemnitee” shall have the meaning provided in Section 12.01.
“Information” shall have the meaning provided in Section 12.15.
“Initial New Senior Notes” shall mean, collectively, (i) the Borrower’s 7.25% Senior
Secured Notes due 2013 in an initial aggregate principal amount equal to $625,000,000, (ii) the
Borrower’s 7.625% Senior Secured Notes due 2016 in an initial aggregate principal amount equal to
$775,000,000 and (iii) the Borrower’s 7.75% Senior Secured Notes due 2018 in an initial aggregate
principal amount equal to $250,000,000, in each case issued pursuant to the New Senior Notes
Indenture, as in effect on the Fourth Restatement Effective Date and as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms hereof and thereof.
“Initial New Senior Notes Documents” shall mean (i) the Initial New Senior Notes, (ii)
the New Senior Notes Indenture and (iii) all other documents executed and delivered in connection
with the issuance of the Initial New Senior Notes, as in effect on the Fourth Restatement Effective
Date and as the same may be amended, modified and/or supplemented from time to time in accordance
with the terms hereof and thereof.
“Insignificant Subsidiary” shall mean, at any time, any Subsidiary of the Borrower
(other than any Subsidiary Guarantor) the gross book value of the assets of which does not exceed
$10,000,000.
“Intercompany Loans” shall have the meaning provided in Section 8.09(i).
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“Intercompany Subordination Agreement” shall have the meaning provided in Section
5.01K.
“Interest Period” shall mean, with respect to any Loan, the interest period applicable
thereto, as determined pursuant to Section 1.09.
“Interest Rate Agreement” shall mean any interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate futures contract, interest rate option
contract or other similar agreement or arrangement.
“Investment Equities” shall mean and include (x) equity securities (i) of any entity
in which the Borrower and its Subsidiaries do not collectively own more than 5% of the outstanding
equity securities of such entity, (ii) which are listed and regularly traded on a nationally
recognized U.S. stock exchange or market and (iii) which are not restricted as to resale by the
Borrower or its Subsidiaries (whether by contract, law or otherwise), (y) preferred stock and/or
“income notes” of any investment vehicle owned by the Borrower or any of its Subsidiaries, so long
as (i) such investment vehicle invests solely in debt securities and (ii) the aggregate amount of
cash used to acquire such preferred stock after the Fifth Restatement Effective Date does not
exceed $35,000,000 and (z) the Equity Interests of the Excluded Joint Ventures owned by the
Borrower or any of its Subsidiaries.
“Investments” shall have the meaning provided in Section 8.09.
“JPMCB” shall mean JPMorgan Chase Bank, N.A. and any successor corporation thereto by
merger, consolidation or otherwise.
“Lane” shall mean Lane Limited, a New York corporation.
“L/C Issuer Maturity Date” shall have the meaning provided in Section 2.01(b).
“L/C Termination Date” shall mean the fifth Business Day preceding the Final RL
Maturity Date.
“LCPI” shall mean Xxxxxx Commercial Paper Inc. and any successor corporation thereto
by merger, consolidation or otherwise.
“Lead Agent” shall mean and include JPMCB and CGMI and any successor to either thereof
appointed pursuant to Section 11.09, it being understood that such term, when used herein, shall
include JPMCB or CGMI, as the case may be, acting in its capacity as Administrative Agent,
Collateral Agent or Syndication Agent, as applicable; provided that, notwithstanding the
foregoing, for purposes of Section 11 only, LCPI shall be deemed to be a “Lead Agent”.
“Lender” shall mean each financial institution listed from time to time on Annex I
hereto, as well as any Swingline Lender and any Person that becomes a “Lender” hereunder pursuant
to Section 1.14, 1.16 or 12.04(b) .
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“Lender Default” shall mean (i) the refusal (which has not been retracted) of a Lender
to make available its portion of any Borrowing or to fund its portion of any unreimbursed payment
under Section 2.03(c) or (ii) a Lender having notified any Lead Agent and/or the Borrower that it
does not intend to comply with its obligations under Section 1.01(a) or 1.01(c) or under Section
2.03(c), in the case of either (i) or (ii) as a result of the appointment of a receiver or
conservator with respect to such Lender at the direction or request of any regulatory agency or
authority.
“Letter of Credit” shall mean each standby letter of credit issued pursuant to Section
2.01.
“Letter of Credit Fee” shall have the meaning provided in Section 3.01(b).
“Letter of Credit Issuer” shall mean and include (i) JPMCB, (ii) each other Lender
requested by the Borrower to issue Letters of Credit to the extent consented to by such Lender and
(iii) with respect to the Existing Letters of Credit, the Lender designated as the issuer thereof
on Annex III.
“Letter of Credit Outstandings” shall mean, at any time, the sum of, without
duplication, (i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the
aggregate amount of all Unpaid Drawings in respect of all Letters of Credit (in the case of Letters
of Credit denominated in a currency other than U.S. Dollars, calculating the Stated Amount and
Unpaid Drawings with respect thereto in accordance with the requirements of Section 12.07(c)).
“Letter of Credit Request” shall have the meaning provided in Section 2.02.
“Lien” shall mean any mortgage, pledge, security interest, encumbrance, lien or charge
of any kind (including any agreement (other than customary negative pledge clauses) to give any of
the foregoing, any conditional sale or other title retention agreement or any lease in the nature
thereof).
“Litigation Bond” shall mean any surety bond, supersedeas bond, judgment bond or other
bond or insurance policy issued for bonding litigation judgments for appeal.
“Loan” shall mean any Revolving Loan or Swingline Loan.
“Mandatory Borrowing” shall have the meaning provided in Section 1.01(c).
“Margin Stock” shall have the meaning provided in Regulation U.
“Marketable Investments” shall mean, as to any Person, (i) securities issued or
directly and fully guaranteed or insured by the United States or any agency or instrumentality
thereof having maturities of not more than two years from the date of acquisition, (ii) marketable
direct obligations issued by any state of the United States or any political subdivision of any
such state or any public instrumentality thereof maturing within two years from the date of
acquisition thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from S&P, Xxxxx’x or Fitch, (iii) Dollar denominated domestic and Eurodollar time
deposits,
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domestic and Yankee certificates of deposit and bank obligations and bankers acceptances
of any Lender or any commercial bank having, or which is the principal banking subsidiary of a bank
holding company having, a long-term unsecured debt rating of at least “A” or the equivalent thereof
from S&P or Fitch or “A2” or the equivalent thereof from Xxxxx’x with maturities of not more than
two years from the date of acquisition by such Person, (iv) repurchase obligations with a term of
not more than one year and collateralized with US Treasury, US Government Agency or other permitted
investments consistent with the Borrower’s corporate guidelines and which have a collateral margin
of at least 102%, marked to market daily, (v) commercial paper, extendable commercial notes and
master notes issued by any Person incorporated in the United States and euro-commercial paper of
domestic and foreign companies rated at least A-1 or the equivalent thereof by S&P or at least P-1
or the equivalent thereof by Xxxxx’x or at least F-1 by
Fitch and in each case maturing not more than 397 days after the date of acquisition by such
Person, (vi) U.S. dollar denominated commercial paper or Canadian dollar commercial paper and
government obligations of Canada, fully hedged, of Canadian companies whose commercial paper is
rated R-1 by Dominion Bond Rating Service, (vii) investments in 2a-7 money market funds, (viii)
corporate bonds and medium term notes rated at least “A” by S&P and/or Fitch and/or “A2” by Xxxxx’x
with maturities of not more than two years from the date of acquisition by such Person, (ix)
asset-backed securities and mortgage-backed securities rated “A” or better by any of S&P, Xxxxx’x
or Fitch with maturities or rate reset dates of not more than two years from the date of
acquisition by such Person, (x) taxable money market preferred (including but not limited to
taxable auction debt) instruments rated at least “A” by S&P and/or Xxxxx’x and/or Fitch and
redeemable at par with a rollover period no longer than six months, (xi) tax exempt debt and par
value preferred instruments rate at least “A” or the equivalent by S&P and/or Xxxxx’x and/or Fitch
and redeemable at par with a rollover period no longer than six months, (xii) domestic and
international equity and bond funds (including indexed funds) with a “market capitalization” or
“assets under management” of not less than $500,000,000, (xiii) separate account portfolios managed
by registered investment advisors with guidelines adhering substantially to the securities above
(it being understood, however, that, for purposes of clause (viii) above, a bond portfolio that
holds corporate bonds and medium term notes rated at least “BBB” by S&P and/or Fitch and/or “Baa2”
by Xxxxx’x (and with maturities of not more than two years from the date of acquisition) shall be
considered to adhere “substantially to the guidelines” in clause (viii) above, so long as such bond
portfolio holds securities that (on a blended basis) satisfy the rating requirements for securities
of the type described in clause (viii) above), and (xiv) separate account portfolios which (x)
constitute “current assets” within the meaning of the definition of “Consolidated Current Assets”,
(y) are managed by a registered investment advisor and (z) invest in securities of the type
described in clauses (i) and (ii) above, except that the underlying securities may have maturities
in excess of two years, so long as the underlying securities held in such account portfolio have an
average duration of not more than five years; provided that the fair market value of all
funds of the type described in this clause (xiv) owned or held by the Borrower and its Subsidiaries
shall not exceed $500,000,000.
“Material Adverse Effect” shall mean (A) as such term is used in any representation or
warranty to be made, any covenant to be undertaken, any condition to be satisfied or any Default or
Event of Default to be determined, in any such case on the Fifth Restatement Effective Date, a
material adverse effect on the business, financial condition, results of operations, assets or
liabilities of the Borrower and its Subsidiaries, taken as a whole, and (B) as such term is used in
any representation or warranty to be made, any covenant to be
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undertaken, any condition to be
satisfied or any Default or Event of Default to be determined, in any such case at any time after
the Fifth Restatement Effective Date, a material adverse effect on (i) the operations, business,
property, assets or financial condition of the Borrower and its Subsidiaries taken as a whole, (ii)
the rights or remedies of the Agents and the Lenders or the ability of any Credit Party to perform
its obligations to the Agents or the Lenders hereunder or under any other Credit Document to which
it is party, and/or (iii) in the case of Section 6.04, on the prospects of the Borrower and its
Subsidiaries taken as a whole, provided that (x) the existence of, or the rendering of any
verdict or entry of any order, injunction or judgment in, any action, suit, proceeding or inquiry
listed on Annex IV will not have a “Material Adverse Effect” for purposes of Section 6.04 and (y)
(I) the existence of, or the rendering of, any verdict or entry of any order, injunction or
judgment that in each case can be stayed pending appeal (but only for
so long as such stay can still be obtained) or that is stayed pending appeal and (II) the
posting of a supersedeas or other appeal bond in respect of any verdict, order or judgment shall
not, in each case, in and of itself have a “Material Adverse Effect” for purposes of Section
6.09(d), even if such verdict, order or judgment could be viewed as having a material adverse
effect on future litigation prospects, unless such verdict, order or judgment results in an actual
material adverse effect on the operations, business, property, assets or financial condition of the
Borrower and its Subsidiaries taken as a whole.
“Material Subsidiary” shall mean and include RJRTH, each of the Conwood Subsidiaries
referred to in clauses (i), (ii) and (iii) of the definition of “Conwood Subsidiaries”, Santa Fe,
Lane, Xxxxxxxx Tobacco, Acquisition Corp., each of the Specified Subsidiaries and each other
Subsidiary of the Borrower (including any Person first becoming a Subsidiary upon consummation of a
Permitted Acquisition) to the extent that (x) the aggregate book value of the assets of such other
Subsidiary, determined on a consolidating basis, is equal to or more than $100,000,000 or (y) the
net sales of such other Subsidiary during its then most recently ended fiscal year, determined on a
consolidating basis, were equal to or more than $100,000,000, provided that such net sales
shall be determined on a pro forma basis for the 12 months last ended when
determining whether any Person that is the survivor of any merger or consolidation or that is the
transferee of any property or assets from other Subsidiaries of the Borrower is a Material
Subsidiary.
“Material Subsidiary Threshold Event” shall mean the occurrence of either of the
following events: (i) the aggregate book value of the assets of all Subsidiaries of the Borrower
which (x) do not constitute Material Subsidiaries in accordance with the definition thereof or (y)
are not then party to the Subsidiary Guaranty (and, if a Trigger Event is then in existence, the
relevant Security Documents), exceeds $250,000,000 or (ii) the net sales of all Subsidiaries of the
Borrower which (x) do not constitute Material Subsidiaries in accordance with the definition
thereof or (y) are not then party to the Subsidiary Guaranty (and, if a Trigger Event is then in
existence, the relevant Security Documents), exceeds $200,000,000.
“Minimum Borrowing Amount” shall mean (i) with respect to a Borrowing of Revolving
Loans, $5,000,000 and (ii) with respect to a Borrowing of Swingline Loans, $1,000,000.
“Minimum Investment Grade Rating” shall mean the lowest rating level established as
investment grade by each Rating Agency; it being understood that, as of the Fifth
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Restatement
Effective Date, the “Minimum Investment Grade Rating” of S&P is BBB- and the “Minimum Investment
Grade Rating” of Xxxxx’x is Baa3.
“Xxxxx’x” shall mean Xxxxx’x Investors Service, Inc., or any successor corporation
thereto.
“Mortgage” shall mean each mortgage, deed of trust or deed to secure debt required to
be delivered with respect to any real property pursuant to the terms of this Agreement (including,
after the execution and delivery thereof, each Mortgage required pursuant to Section 7.10),
together with any assignment of leases and rents to be executed in connection therewith
(as amended, modified or supplemented from time to time in accordance with the terms hereof
and thereof).
“Mortgage Amendment” shall have the meaning provided in Section 5.01N.
“Mortgage Policy” shall mean each mortgage title insurance policy (and all
endorsements thereto) for each Mortgaged Property required to be delivered pursuant to this
Agreement.
“Mortgaged Properties” shall mean the Existing Mortgaged Properties and shall include
any real property mortgaged pursuant to Section 7.10.
“Net Sale Proceeds” shall mean for any sale or other disposition of assets, the gross
cash proceeds (including any cash received by way of deferred payment pursuant to a promissory
note, receivable or otherwise, but only as and when received) received from such sale or other
disposition of assets, net of (i) reasonable transaction costs (including, without limitation, any
underwriting, brokerage or other customary selling commissions, reasonable legal, advisory and
other fees and expenses (including title and recording expenses), associated therewith and sales,
VAT and transfer taxes arising therefrom), (ii) payments of unassumed liabilities relating to the
assets sold or otherwise disposed of at the time of, or within 30 days after, the date of such sale
or other disposition, (iii) the amount of such gross cash proceeds required to be used to
permanently repay any Indebtedness (other than Indebtedness of the Lenders pursuant to this
Agreement) which is secured by the respective assets which were sold or otherwise disposed of, and
(iv) the estimated net marginal increase in income taxes which will be payable by Borrower’s
consolidated group or any Subsidiary of Borrower with respect to the fiscal year of Borrower in
which the sale or other disposition occurs as a result of such sale or other disposition;
provided, however, that such gross proceeds shall not include any portion of such
gross cash proceeds which Borrower determines in good faith should be reserved for post-closing
adjustments (to the extent Borrower delivers to the Lenders a certificate signed by an Authorized
Officer as to such determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than six months following
the date of the respective asset sale), the amount (if any) by which the reserved amount in respect
of such sale or disposition exceeds the actual post-closing adjustments payable by Borrower or any
of its Subsidiaries shall constitute Net Sale Proceeds on such date received by Borrower and/or any
of its Subsidiaries from such sale or other disposition.
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“Net Termination Value” shall mean at any time, with respect to all Hedging Agreements
for which a Net Termination Value is being determined, the excess, if positive, of (i) the
aggregate of the unrealized net loss position of the Borrower and/or its Subsidiaries under each of
such Hedging Agreements on a marked-to-market basis determined no more than one month prior to such
time less (ii) the aggregate of the unrealized net gain position of the Borrower and/or its
Subsidiaries under each of such Hedging Agreements on a marked-to-market basis determined no more
than one month prior to such time.
“New Senior Notes” shall mean (i) the Initial New Senior Notes, (ii) the Exchange
Senior Notes and (iii) the Additional Senior Notes, in each case as the same may be
amended, modified and/or supplemented from time to time in accordance with the terms hereof
and thereof.
“New Senior Notes Documents” shall mean (i) the New Senior Notes, (ii) the New Senior
Notes Indenture and (iii) all other documents executed and delivered in connection with any
issuance of the New Senior Notes, in each case as the same may be amended, modified and/or
supplemented from time to time in accordance with the terms hereof and thereof.
“New Senior Notes Indenture” shall mean the Indenture, dated as of May 31, 2006, among
the Borrower, the Subsidiary Guarantors and The Bank of New York, as trustee, as in effect on the
Fifth Restatement Effective Date and as the same may be amended, modified and/or supplemented from
time to time in accordance with the terms hereof and thereof.
“Non-Continuing Lender” shall mean, at any time, each Lender which is not a Continuing
Lender at such time.
“Non-Declared Dividend” shall mean and include, as to any Person, (i) the redemption,
retirement, purchase, or other acquisition, directly or indirectly, for a consideration, of any
shares of any class of its capital stock or of any other Equity Interests of such Person
outstanding on the Fifth Restatement Effective Date or thereafter (or any warrants for or options
or stock or similar appreciation rights in respect of any such shares or Equity Interests but not
including any convertible debt) or the setting aside of any funds for any of the foregoing purposes
and (ii) the making or payment of any other Dividend on or after the Fifth Restatement Effective
Date by such Person which does not require or involve a declaration or authorization by such
Person.
“Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting
Lender.
“Non-Defaulting RL Lender” shall mean each RL Lender which is not a Defaulting Lender.
“Non-Guarantor Subsidiary” shall mean (i) on the Fifth Restatement Effective Date,
each Subsidiary of the Borrower listed on Part B of Annex V and (ii) after the Fifth Restatement
Effective Date, any Subsidiary of the Borrower that is not at such time a Subsidiary Guarantor.
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“Non-Wholly Owned Subsidiary” shall mean, as to any Person, each Subsidiary of such
Person which is not a Wholly-Owned Subsidiary of such Person.
“Note” shall have the meaning provided in Section 1.05(a).
“Notice of Borrowing” shall have the meaning provided in Section 1.03(a).
“Notice of Conversion” shall have the meaning provided in Section 1.06.
“Notifying SL Lender” shall have the meaning provided in Section 1.01(c).
“Obligations” shall mean all amounts, direct or indirect, contingent or absolute, of
every type or description, and at any time existing, owing to any Agent, the Administrative Agent,
the Collateral Agent, any Letter of Credit Issuer, either Swingline Lender or any Lender pursuant
to the terms of this Agreement or any other Credit Document.
“Original Credit Agreement” shall mean the Credit Agreement, dated as of May 7, 1999,
among RJRTH and certain financial institutions, as in effect on the First Restatement Effective
Date (immediately prior to giving effect thereto).
“Original Effective Date” shall mean the “Closing Date” under, and as defined in, the
Original Credit Agreement.
“Participant” shall have the meaning provided in Section 2.03(a).
“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.
“Permitted Acquisition” shall mean the acquisition by the Borrower or a Wholly-Owned
Domestic Subsidiary of the Borrower of an Acquired Entity or Business (including by way of merger
of such Acquired Entity or Business with and into the Borrower (so long as the Borrower is the
surviving corporation) or a Wholly-Owned Domestic Subsidiary of the Borrower (so long as if such
Wholly-Owned Domestic Subsidiary is a Subsidiary Guarantor, such Subsidiary Guarantor is the
surviving corporation)), provided that (in each case) (A) the consideration paid or to be
paid by the Borrower or such Wholly-Owned Domestic Subsidiary consists solely of cash (including
proceeds of Revolving Loans or Swingline Loans), Borrower Common Stock, contingent earn-outs to be
paid in cash or Borrower Common Stock, the issuance or incurrence of Indebtedness (including
earn-outs) otherwise permitted by Section 8.04 and the assumption/acquisition of any Indebtedness
(calculated at face value) which is permitted to remain outstanding in accordance with the
requirements of Section 8.04, (B) in the case of the acquisition of 100% of the Equity Interests of
any Acquired Entity or Business (including by way of merger), such Acquired Entity or Business
shall own no Equity Interests of any other Person unless either (x) such Acquired Entity or
Business owns 100% of the Equity Interests of such other Person or (y) if such Acquired Entity or
Business owns Equity Interests in any other Person which is a Non-Wholly Owned Subsidiary of such
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Acquired Entity or Business, (1) such Acquired Entity or Business shall not have been created or
established in contemplation of, or for purposes of, the respective Permitted Acquisition, (2) any
such Non-Wholly Owned Subsidiary of the Acquired Entity or Business shall have been a Non-Wholly
Owned Subsidiary of such Acquired Entity or Business prior to the date of the respective Permitted
Acquisition and shall not have been created or established in contemplation thereof and (3) such
Acquired Entity or Business and/or its Wholly-Owned Subsidiaries own at least 90% of the total
value of all the assets owned by such Acquired Entity or Business and its subsidiaries (for
purposes of such determination, excluding the value of the Equity Interests of Non-Wholly Owned
Subsidiaries held by such Acquired Entity or Business and its Wholly-Owned Subsidiaries), (C) all
of the business, division or product line acquired pursuant to the respective Permitted
Acquisition, or the business of the Person acquired pursuant to the respective Permitted
Acquisition and its Subsidiaries taken as a whole, is in the United States, provided,
however, the respective proposed Permitted Acquisition shall not be required to meet the
requirements set forth above in this
clause (C) if the Aggregate Consideration payable in connection with the portion of the
Acquired Business or Entity acquired pursuant to such Permitted Acquisition that does not meet the
requirements of clause (C) (as determined in good faith by the Borrower), when aggregated with the
Aggregate Consideration payable in connection with the portions of all other Acquired Businesses or
Entities acquired pursuant to Permitted Acquisitions consummated after the Fifth Restatement
Effective Date that do not meet the foregoing requirements of this clause (C) (as determined in
good faith by the Borrower), does not exceed $100,000,000, (D) after giving effect to the
respective Permitted Acquisition, the Borrower and its Subsidiaries are in compliance with Section
8.01, (E) in the case of the acquisition of 100% of the Equity Interests of any Acquired Entity or
Business, if the respective Acquired Entity or Business so acquired would be a Material Subsidiary
after giving effect to such Permitted Acquisition, such Acquired Entity or Business shall become a
Subsidiary Guarantor upon the consummation of such Permitted Acquisition and takes all of the
actions specified in Section 8.02(h)(y)(II), (F) in the case of a Permitted Acquisition by a
Wholly-Owned Domestic Subsidiary that is not a Material Subsidiary but that, after giving effect to
such Permitted Acquisition, will become a Material Subsidiary, such Wholly-Owned Domestic
Subsidiary shall become a Subsidiary Guarantor upon the consummation of such Permitted Acquisition
and take all of the actions specified in Section 8.02(h)(y)(II), and (G) in the case of a Permitted
Acquisition by any Credit Party while a Trigger Event is in effect, take all other actions
specified in Section 7.10(b) as may be requested by the Administrative Agent. Notwithstanding
anything to the contrary contained in the immediately preceding sentence, an acquisition which does
not otherwise meet the requirements set forth above in the definition of “Permitted Acquisition”
shall constitute a Permitted Acquisition if, and to the extent, the Required Lenders agree in
writing, prior to the consummation thereof, that such acquisition shall constitute a Permitted
Acquisition for purposes of this Agreement.
“Permitted Currency Agreement” shall mean any Currency Agreement entered into in the
ordinary course of business by the Borrower and/or any Subsidiary of the Borrower with any Lender
or Lenders (and/or their affiliates) to the extent consistent with the practices of the Borrower
and its Subsidiaries prior to the Fifth Restatement Effective Date or with then current practices
in the industry and so long as the entering into of any such Currency Agreement is a bona fide
hedging activity and not for speculative purposes.
“Permitted Encumbrance” shall mean, with respect to any Mortgaged Property, such
exceptions to title as are set forth in the Mortgage Policy delivered with respect thereto, all of
which exceptions must be acceptable to the Administrative Agent in its reasonable discretion.
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“Permitted Interest Rate Agreements” shall mean, collectively, Interest Rate
Agreements entered into in the ordinary course of business by the Borrower and/or any Subsidiary
Guarantor with any financial institution that is a Lender (and/or an affiliate of any Lender) at
the time of the entering into of any such Interest Rate Agreement, so long as the entering into of
any such Interest Rate Agreement is a bona fide hedging activity and not for speculative purposes.
“Permitted Liens” shall have the meaning provided in Section 8.03.
“Permitted Litigation Bonding” shall mean the making of deposits with the proceeds of
Loans and/or the issuance of Letters of Credit, in each case for the purposes of
bonding litigation judgments entered against any Credit Party after the Fifth Restatement
Effective Date.
“Permitted Obligations” shall mean and include obligations (i) to pay taxes, (ii) to
pay import duties, to post customs bonds and otherwise in connection with customs and trade laws,
(iii) to purchase equipment or fixtures and otherwise in connection with capital expenditures, (iv)
in connection with the importation or purchase of tobacco or other products or goods for use in the
day-to-day operations of the Borrower and any Subsidiary of the Borrower consistent with the
practices of the Borrower and its Subsidiaries in effect prior to the Fifth Restatement Effective
Date or with then current practices in the industry, (v) to make utility payments, (vi) in
connection with worker’s compensation obligations or other employee disability obligations, (vii)
to provide credit support for any of the foregoing, (viii) in respect of employee loans made in
connection with transfers, (ix) to provide credit support for suppliers and distributors in the
ordinary course of business, and (x) to support Indebtedness supported by Existing Letters of
Credit on the Fifth Restatement Effective Date.
“Person” shall mean any individual, partnership, limited liability company, joint
venture, firm, corporation, association, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.
“Plan” shall mean any multiemployer or single-employer plan as defined in Section 4001
of ERISA, which is maintained or contributed to by (or to which there is an obligation to
contribution of), or at any time during the five calendar years preceding the date of this
Agreement was maintained or contributed to by (or to which there is an obligation to contribution
of), the Borrower, any Subsidiary of the Borrower or an ERISA Affiliate.
“Pledge Agreement” shall have the meaning provided in Section 5.01L.
“Post-Closing Integration Charges” shall mean integration charges actually accrued or
recorded by the Borrower and its Subsidiaries during the period commencing on the Fourth
Restatement Effective Date and ending on December 31, 2007 in connection with the severance of
employees, the relocation of offices, equipment and employees, the payment of professional fees,
other Acquisition related integration costs and the amortization of related intangibles following
the consummation of the Acquisition; provided that the aggregate amount of such charges (to
the extent provided for as an add-back pursuant to the definitions of
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“Consolidated EBITDA”) shall
not exceed $45,000,000 in the aggregate (determined on a pre-tax basis).
“Pounds Sterling” shall mean freely transferable lawful money of the United Kingdom
(expressed in Pounds Sterling).
“Preferred Equity Interests” as applied to the Equity Interests of any Person, means
capital stock of such Person (other than common Equity Interests of such Person) of any class or
classes (however designated) that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of
such Person, to Equity Interests of any other class of Equity Interests of such Person, and shall
include any Qualified Preferred Stock and any Disqualified Preferred Stock.
“Pro Forma Basis” shall mean, in connection with any calculation of compliance with
any financial covenant or financial term, the calculation thereof after giving effect on a
pro forma basis to (x) the incurrence of any Indebtedness (other than revolving
Indebtedness, except to the extent same is incurred to refinance other outstanding Indebtedness or
to finance a Permitted Acquisition) after the first day of the relevant Calculation Period or Test
Period, as the case may be, as if such Indebtedness had been incurred (and the proceeds thereof
applied) on the first day of such Test Period or Calculation Period, as the case may be, (y) the
permanent repayment of any Indebtedness (other than revolving Indebtedness, except to the extent
accompanied by a corresponding permanent commitment reduction) after the first day of the relevant
Test Period or Calculation Period, as the case may be, as if such Indebtedness had been retired or
repaid on the first day of such Test Period or Calculation Period, as the case may be, and (z) any
Permitted Acquisition or any Significant Asset Sale then being consummated as well as any other
Permitted Acquisition or any other Significant Asset Sale if consummated after the first day of the
relevant Test Period or Calculation Period, as the case may be, and on or prior to the date of the
respective Permitted Acquisition or Significant Asset Sale, as the case may be, then being
effected, with the following rules to apply in connection therewith:
(i) all Indebtedness (x) (other than revolving Indebtedness, except to the extent same
is incurred to refinance other outstanding Indebtedness or to finance Permitted
Acquisitions) incurred or issued after the first day of the relevant Test Period or
Calculation Period (whether incurred to finance a Permitted Acquisition, to refinance
Indebtedness or otherwise) shall be deemed to have been incurred or issued (and the proceeds
thereof applied) on the first day of such Test Period or Calculation Period, as the case may
be, and remain outstanding through the date of determination and (y) (other than revolving
Indebtedness, except to the extent accompanied by a corresponding permanent commitment
reduction) permanently retired or redeemed after the first day of the relevant Test Period
or Calculation Period, as the case may be, shall be deemed to have been retired or redeemed
on the first day of such Test Period or Calculation Period, as the case may be, and remain
retired through the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall
be deemed to have borne interest at (x) the rate applicable thereto, in the case of fixed
rate indebtedness, or (y) the rates which would have been applicable thereto during the
respective period when same was deemed outstanding, in the case of floating rate
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Indebtedness (although interest expense with respect to any Indebtedness for periods while
same was actually outstanding during the respective period shall be calculated using the
actual rates applicable thereto while same was actually outstanding); provided that
all Indebtedness (whether actually outstanding or deemed outstanding) bearing interest at a
floating rate of interest shall be tested on the basis of the rates applicable at the time
the determination is made pursuant to said provisions; and
(iii) in making any determination of Consolidated EBITDA on a Pro Forma
Basis, pro forma effect shall be given to any Permitted Acquisition or any
Significant Asset Sale if effected during the respective Calculation Period or Test Period
(or thereafter, for purposes of determinations pursuant to Sections 8.05(d) and 8.09(l) and
the definition of “Incremental Commitment Requirements” only) as if same had occurred on the
first day of the respective Calculation Period or Test Period, as the case may be,
taking into account, in the case of any Permitted Acquisition, factually supportable
and identifiable cost savings and expenses which would otherwise be accounted for as an
adjustment pursuant to Article 11 of Regulation S-X under the Securities Act, as if such
cost savings or expenses were realized on the first day of the respective period.
“Qualified Preferred Stock” shall mean any Preferred Equity Interests of the Borrower,
so long as the terms of any such Preferred Equity Interests (v) do not contain any mandatory put,
redemption, repayment, sinking fund or other similar provision prior to the second anniversary of
the Final RL Maturity Date in effect at the time of the issuance thereof, (w) do not require the
cash payment of dividends or distributions, (x) do not contain any covenants (other than periodic
reporting requirements), (y) do not grant the holders thereof any voting rights except for (I)
voting rights required to be granted to such holders under applicable law and (II) limited
customary voting rights on fundamental matters such as mergers, consolidations, sales of all or
substantially all of the assets of the Borrower, or liquidations involving the Borrower, and (z)
are otherwise reasonably satisfactory to the Lead Agents.
“Quarterly Payment Date” shall mean the third Business Day following the last day
occurring in each of March, June, September and December.
“Rating Agency” shall mean each of S&P and Moody’s.
“Real Property” of any Person shall mean all the right, title and interest of such
Person in and to land, improvements and fixtures, including leaseholds.
“Reference Rate” shall mean, at any time, the higher of (x) the rate which is 1/2 of
1% in excess of the Federal Funds Rate and (y) the Base Rate as in effect from time to time.
“Reference Rate Loan” shall mean each Revolving Loan or Swingline Loan bearing
interest at the rates provided in Section 1.08(a).
“Refinance” shall mean, as used in relation to any refinancing of outstanding New
Senior Notes, Existing Senior Notes or Refinancing Senior Notes, that (i) principal of New Senior
Notes, Existing Senior Notes or Refinancing Senior Notes, as the case may be, shall have been
refinanced, in whole or in part, with the proceeds of Refinancing Senior Notes or (ii) the Borrower
has at all times cash and/or Marketable Investments on its balance sheet (representing
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cash
proceeds from an issuance of Refinancing Senior Notes) (x) which are specifically set aside for
purposes of repaying, and are sufficient in amount to repay, the principal of such outstanding New
Senior Notes, Existing Senior Notes or Refinancing Senior Notes, as the case may be, deemed
“refinanced” with the proceeds of such Refinancing Senior Notes (as indicated by way of a footnote
in its financial statements included in the then most recent public filing with the SEC) and (y) if
a Trigger Event is in effect, in which the Collateral Agent (on behalf of the Secured Creditors)
has a first-priority perfected security interest, subject to Permitted Liens.
“Refinancing Senior Notes” shall mean one or more issuances of senior notes issued by
the Borrower to Refinance New Senior Notes, Existing Senior Notes or any other senior notes
theretofore issued as “Refinancing Senior Notes” in reliance on this definition, all of the terms
and conditions of which (and of the indenture governing the same) are substantially identical to
(or, from the perspective of the Lenders, more favorable than) those applicable to the
Initial New Senior Notes (and the New Senior Notes Indenture), without giving effect to any
repayment of such Initial New Senior Notes; provided that (i) the final stated maturity of
any such senior notes may differ from that of the Initial New Senior Notes, so long as the final
stated maturity of any such senior notes shall be no shorter than the date occurring one year after
the Final RL Maturity Date in effect at the time of the issuance thereof, (ii) the interest rate
and principal amount of any such senior notes may differ from that of the Initial New Senior Notes
and (iii) the aggregate principal amount of any such senior notes issued at any time to refinance
New Senior Notes, Existing Senior Notes or any other senior notes theretofore issued as
“Refinancing Senior Notes” in reliance on this definition shall not exceed the aggregate principal
amount of the Indebtedness so refinanced; provided, however, that in the case of
any such senior notes issued to Refinance (within the meaning of clause (ii) of the definition of
“Refinance”) New Senior Notes, Existing Senior Notes or any other senior notes theretofore issued
as “Refinancing Senior Notes” in reliance on this definition, the aggregate principal amount of
such senior notes may exceed the aggregate principal amount of the Indebtedness so Refinanced, so
long as the aggregate principal amount of all senior notes issued in reliance on this proviso to
Refinance (within the meaning of clause (ii) of the definition of “Refinance”) New Senior Notes or
any other senior notes theretofore issued as “Refinancing Senior Notes” in reliance on this
definition (but excluding Existing Senior Notes) does not exceed $500,000,000 at any time
outstanding.
“Register” shall have the meaning provided in Section 12.04(f).
“Regulation D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.
“Regulation U” shall mean Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof
establishing margin requirements.
“Related Parties” means, 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.
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“Replaced Lender” shall have the meaning provided in Section 1.14.
“Replacement Lender” shall have the meaning provided in Section 1.14.
“Reportable Event” shall mean an event described in Section 4043(c) of ERISA with
respect to a Plan as to which the 30-day notice requirement has not been waived by the PBGC.
“Required Lenders” shall mean, at any time, Non-Defaulting Lenders the sum of whose
outstanding Revolving Loan Commitments at such time (or, after the termination thereof, outstanding
Revolving Loans and RL Percentages of (x) outstanding Swingline Loans at such time and (y) Letter
of Credit Outstandings at such time) represents an amount greater than 50% of the Total Revolving
Loan Commitment in effect at such time less the Revolving Loan Commitments of all
Defaulting Lenders at such time (or, after the termination thereof, the sum of
then total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate RL
Percentages of all Non-Defaulting Lenders of the total outstanding Swingline Loans and Letter of
Credit Outstandings at such time).
“Returns” shall have the meaning provided in Section 6.10.
“Revolving Loan” shall have the meaning provided in Section 1.01(a).
“Revolving Loan Commitment” shall mean, with respect to each Lender, the amount set
forth opposite such Lender’s name in Annex I hereto, as the same may be reduced and/or adjusted
from time to time pursuant to Section 1.14, 3.02, 3.03, 9 and/or 12.04(b)(A).
“Revolving Note” shall have the meaning provided in Section 1.05(a).
“Xxxxxxxx Tobacco” shall mean X.X. Xxxxxxxx Tobacco Company, a North Carolina
corporation.
“RJRTH” shall mean X.X. Xxxxxxxx Tobacco Holdings, Inc., a Delaware corporation and a
Wholly-Owned Subsidiary of the Borrower.
“RL Lender” shall mean each Lender with a Revolving Loan Commitment or with
outstanding Revolving Loans.
“RL Maturity Date” of any RL Lender shall mean June 28, 2012, as such date may be
extended for such RL Lender pursuant to Section 1.17.
“RL Percentage” shall mean, at any time, for each RL Lender, the percentage obtained
by dividing such RL Lender’s Revolving Loan Commitment at such time by the Total Revolving Loan
Commitment at such time, provided that at any time when the Total Revolving Loan Commitment
shall have been terminated, each RL Lender’s RL Percentage shall be the percentage obtained by
dividing such RL Lender’s outstanding Revolving Loans at such time by the aggregate outstanding
Revolving Loans of all RL Lenders at such time.
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“S&P” shall mean Standard & Poor’s Ratings Services, a division of XxXxxx-Xxxx, Inc.,
or any successor thereto.
“Santa Fe” shall mean Santa Fe Natural Tobacco Company, Inc., a New Mexico
corporation.
“SEC” shall have the meaning provided in Section 7.01(f).
“SEC Regulation D” shall mean Regulation D as promulgated under the Securities Act of
1933, as amended, as the same may be in effect from time to time.
“Second Amended and Restated Credit Agreement” shall mean that certain Credit
Agreement, dated as of May 10, 2002 between RJRTH and certain financial institutions and the other
parties thereto, as amended, modified and/or supplemented (but not amended and restated) from time
to time.
“Secured Credit Card Agreement” shall have the meaning provided in the Security
Agreement.
“Secured Creditors” shall mean and include, with respect to any Collateral, (i) all
Lenders (including in their capacity as Letter of Credit Issuers, Swingline Lenders, Credit Card
Issuers or parties to Hedging Agreements) and their affiliates and other Hedging Agreement parties
as provided in the Security Documents and (ii) all holders of New Senior Notes, Existing Senior
Notes and Refinancing Senior Notes, in each case, to the extent the Lien sharing provisions of the
indenture(s) governing the New Senior Notes, the Existing Senior Notes or the Refinancing Senior
Notes, as the case may be, require them to be secured by such Collateral.
“Security Agreement” shall have the meaning provided in Section 5.01M.
“Security Document” shall mean and include (i) each of the Security Agreement and the
Pledge Agreement entered into on the Fifth Restatement Effective Date until the same are terminated
in accordance with their terms, (ii) each Mortgage, until the same is terminated in accordance with
its terms, (iii) after the execution and delivery thereof, each Additional Security Document, until
the same is terminated in accordance with its terms and (iii) upon the occurrence of a new Trigger
Event after the Fifth Restatement Effective Date, the pledge agreements, security agreements and
mortgages entered into (or required to be entered into) pursuant to Section 7.10(b).
“Significant Asset Sale” shall mean each Asset Sale which generates Net Sale Proceeds
of at least $100,000,000.
“Significant Letter of Credit Issuer” shall mean JPMCB and any other Letter of Credit
Issuer which has issued Letters of Credit in an aggregate Stated Amount for all such Letters of
Credit equal to at least $5,000,000.
“SPC” shall have the meaning provided in Section 12.04.
“Specified Subsidiaries” shall mean GMB and FHS.
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“Stated Amount” of any Letter of Credit shall mean the maximum amount available to be
drawn thereunder, determined without regard to whether any conditions to drawing could then be met.
The Stated Amount of any Letter of Credit denominated in a currency other than U.S. Dollars shall
be calculated in accordance with the requirements of Section 12.07(c).
“Stub Notes” shall mean, collectively, (i) RJRTH’s 8.50% Notes due July 1, 2007 in an
initial aggregate principal amount equal to $7,093,000, (ii) RJRTH’s 8.75% Notes due July 15, 2007
in an initial aggregate principal amount equal to $21,814,000 and (iii) RJRTH’s 9.25% Notes due
August 15, 2013 in an initial aggregate principal amount equal to $60,077,000, in each case as the
same may be amended, modified and/or supplemented from time to time.
“Subsidiary” of any Person shall mean and include (i) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at the time
stock of any class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint venture or other
entity in which such Person directly or indirectly through Subsidiaries has more than a 50% Equity
Interest at the time. Unless otherwise expressly provided, all references herein to “Subsidiary”
shall mean a Subsidiary of the Borrower.
“Subsidiary Guarantor” shall mean (i) each Material Subsidiary of the Borrower as of
the Fifth Restatement Effective Date, (ii) each other Subsidiary of the Borrower as of the Fifth
Restatement Effective Date (other than a Non-Guarantor Subsidiary), and (iii) each other Subsidiary
of the Borrower created, established or acquired after the Fifth Restatement Effective Date which
executes and delivers the Subsidiary Guaranty, unless and until such time as the respective
Subsidiary ceases to constitute a Subsidiary or is released from all of its obligations under the
Subsidiary Guaranty in accordance with the terms and provisions thereof.
“Subsidiary Guaranty” shall have the meaning provided in Section 5.01J.
“Swingline Commitment” shall mean, at any time, for each Swingline Lender, the
commitment of such Swingline Lender to make Swingline Loans in an aggregate principal amount not to
exceed the lesser of (x) the Revolving Loan Commitment of such Swingline Lender (in its capacity as
an RL Lender) at such time and (y) $50,000,000, as the same may be reduced and/or adjusted from
time to time pursuant to Section 1.14, 3.2, 3.3, 9 and/or 12.04(b)(A).
“Swingline Lender” shall mean and include each of JPMCB and CGMI, each in its capacity
as a swingline lender hereunder.
“Swingline Loans” shall have the meaning provided in Section 1.01(b).
“Swingline Maturity Date” of any Swingline Lender shall mean the date which is five
Business Days prior to the RL Maturity Date for the Revolving Loan Commitments and Revolving Loans
of such Swingline Lender.
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“Swingline Note” shall have the meaning provided in Section 1.05(a).
“Syndication Agent” shall mean Citigroup Global Markets Inc. acting in its capacity as
syndication agent hereunder.
“Tax Benefit” shall have the meaning provided in Section 4.04(c).
“Tax Sharing Agreement” shall mean that certain Tax Sharing Agreement, dated as of
July 30, 2004, among the Borrower and various of its Subsidiaries, as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms hereof and thereof.
“Taxes” shall have the meaning provided in Section 4.04(a).
“Test Period” shall mean each period of four consecutive fiscal quarters then last
ended, in each case taken as one accounting period. Notwithstanding anything to the contrary
contained above or in Section 13.07 or otherwise required by GAAP, in the case of any Test Period
ending prior to the Fifth Restatement Effective Date, such period shall be a one-year period ending
on the last day of the fiscal quarter last ended, with any calculations of Consolidated Cash
Interest Expense and Consolidated EBITDA required in determining compliance with Section 8.07 or
8.08 to be made on a pro forma basis in accordance with, and to the extent provided
in, the immediately succeeding sentences.
“Third Amended and Restated Credit Agreement” shall mean that certain Credit
Agreement, dated as of July 30, 2004 between RJRTH and certain financial institutions and the other
parties thereto, as amended, modified and/or supplemented (but not amended and restated) from time
to time.
“Total Commitment” shall mean, at any time, the Revolving Loan Commitments and
Swingline Commitments of each Lender at such time.
“Total Revolving Loan Commitment” shall mean, at any time, the sum of the Revolving
Loan Commitments of each of the Lenders at such time.
“Total Unutilized Revolving Loan Commitment” shall mean, at any time, the portion of
the Total Revolving Loan Commitment equal to the excess of (x) the Total Revolving Loan Commitment
at such time over (y) the sum of (i) the aggregate outstanding principal amount of all Revolving
Loans and Swingline Loans at such time and (ii) the Letter of Credit Outstandings at such time.
“Total Unutilized Swingline Commitment” shall mean, at any time, the portion of the
Swingline Commitments equal to the excess of (x) the aggregate amount of the Swingline Commitments
at such time over (y) the aggregate outstanding principal amount of all Swingline Loans at such
time.
“Tranche” shall mean the respective facility and commitments utilized in making Loans
hereunder, with there being two separate Tranches, i.e., Revolving Loans and Swingline
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Loans; provided that for purposes of Sections 1.14, 12.04(b) and 12.12(a) and (b),
Revolving Loans and Swingline Loans shall be deemed to constitute part of a single “Tranche.”
“Transaction” shall mean, collectively, (i) the execution, delivery and performance by
each Credit Party of the 2007 New Senior Notes Documents to which it is a party, the issuance of
the 2007 New Senior Notes and the use of proceeds thereof, (ii) the execution, delivery and
performance by each Credit Party of the Credit Documents to which it is a party, (iii) the
occurrence of the Fifth Restatement Effective Date and the incurrence of extensions of credit
hereunder on such date, and (iv) the payment of all fees and expenses in connection with the
foregoing.
“Trigger Event” shall mean that the Applicable Corporate Credit Rating issued by each
Rating Agency is at least one level below the Minimum Investment Grade Rating or that the
Applicable Corporate Credit Rating issued by either Rating Agency is at least two levels below the
Minimum Investment Grade Rating.
“2007 New Senior Notes” shall mean, collectively, (i) the Borrower’s 6.750% Senior
Secured Notes due 2017 in an initial aggregate principal amount equal to $700,000,000 (as reduced
by any principal repayments thereof after the date of issuance), (ii) the Borrower’s Senior Secured
Floating Rate Notes due 2011 in an initial aggregate principal amount equal to $400,000,000 (as
reduced by any principal repayments thereof after the date of issuance), and (iii) the Borrower’s
7.250% Senior Secured Notes due 2037 in an initial principal amount of $450,000,000, in each case
issued pursuant to the New Senior Notes Indenture, as in effect on the Fifth Restatement Effective
Date and as the same may be amended, modified and/or supplemented from time to time in accordance
with the terms hereof and thereof.
“2007 New Senior Notes Documents” shall mean, collectively, (i) the 2007 New Senior
Notes and (ii) the New Senior Notes Indenture, in each case as in effect on the Fifth Restatement
Effective Date and as the same may be amended, modified and/or supplemented from time to time in
accordance with the terms hereof and thereof.
“Type” shall mean any type of Loan determined with respect to the interest option
applicable thereto, i.e., a Reference Rate Loan or Eurodollar Loan.
“UCC” shall mean the Uniform Commercial Code.
“Unfunded Current Liability” of any Plan shall mean the amount, if any, by which the
present value of the accrued benefits under such Plan as of the close of its most recent plan year,
determined in accordance with Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by such Plan’s actuary in the most recent annual valuation of such Plan,
exceeds the fair market value of the assets allocable thereto, determined in accordance with
Section 412 of the Code.
“Unpaid Drawing” shall have the meaning provided in Section 2.04(a).
“Unutilized Revolving Loan Commitment” shall mean, with respect to any Lender at any
time, such Lender’s Revolving Loan Commitment at such time less the sum of
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(i) the
aggregate outstanding principal amount of all Revolving Loans made by such Lender at such time and
(ii) such Lender’s RL Percentage of the Letter of Credit Outstandings at such time.
“U.S. Dollars” shall mean freely transferable lawful money of the United States of
America.
“Wholly-Owned Domestic Subsidiary” shall mean, as to any Person, any Wholly-Owned
Subsidiary of such Person that is a Domestic Subsidiary of such Person.
“Wholly-Owned Subsidiary” of any Person shall mean any Subsidiary of such Person to
the extent all of the capital stock or other ownership interests in such Subsidiary, other than
directors’ or nominees’ qualifying shares, is owned directly or indirectly by such Person.
“Written” or “in writing” shall mean any form of written communication or a
communication by means of telex, telecopier device, telegraph or cable.
SECTION 11. The Lead Agents.
11.01 Appointment. Each Lender hereby irrevocably designates and appoints JPMCB and
CGMI, as Lead Agents (such term as used in this Section 11 to include each Lead Agent acting as
Administrative Agent or Syndication Agent, as applicable, and the Administrative Agent acting as
Collateral Agent) for such Lender to act as specified herein and in the other Credit Documents, and
each such Lender hereby irrevocably authorizes JPMCB and CGMI, as the Lead Agents for such Lender,
to take such action on its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly delegated to the
respective Lead Agents by the terms of this Agreement and the other Credit Documents, together with
such other powers as are reasonably incidental thereto. Each Lead Agent agrees to act as such upon
the express conditions contained in this Section 11. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Lead Agent shall have any duties or responsibilities, except those
expressly set forth herein or in the other Credit Documents, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Credit Document or otherwise exist against any Lead
Agent. The provisions of this Section 11 are solely for the benefit of the Lead Agents and the
Lenders, and no Credit Party shall have any rights as a third party beneficiary of any of the
provisions hereof, provided that the Borrower shall have the rights granted to it pursuant
to Section 11.09. In performing its functions and duties under this Agreement and each other
Credit Document, each Lead Agent shall act solely as agent of the Lenders and does not assume and
shall not be deemed to have assumed any obligation or relationship of agency or trust with or for
either Credit Party. No Lender which is a Syndication Agent (other than CGMI), Documentation
Agent, Co-Documentation Agent, Managing Agent, Co-Agent, Participant, Joint Lead Arranger or Joint
Bookrunner (as such Lender may be designated in such capacity pursuant to the signature pages
hereto or otherwise) shall have any duties or obligations in its capacity as such under this
Agreement.
11.02 Delegation of Duties. Each Lead Agent may execute any of its duties under this
Agreement or any other Credit Document by or through agents or attorneys-in-
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fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties. No Lead Agent
shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected
by it with reasonable care except to the extent otherwise required by Section 11.03.
11.03 Exculpatory Provisions. No Lead Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with this Agreement or any
other Credit Document (except for its or such Person’s own gross negligence or willful misconduct
as determined by a court of competent jurisdiction in a final and non-appealable decision) or (ii)
responsible in any manner
to any of the Lenders for any recitals, statements, representations or warranties made by the
Borrower, any Subsidiary or any of their respective officers contained in this Agreement, any other
Credit Document or in any certificate, report, statement or other document referred to or provided
for in, or received by any Lead Agent under or in connection with, this Agreement or any other
Credit Document or for any failure of the Borrower or any Subsidiary or any of their respective
officers to perform its obligations hereunder or thereunder. No Lead Agent shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to inspect the properties, books
or records of the Borrower or any Subsidiary. No Lead Agent shall be responsible to any Lender for
the effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement or any Credit Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other documents in connection herewith or
therewith furnished or made by any Lead Agent to the Lenders or by or on behalf of the Borrower or
any Subsidiary to any Lead Agent or any Lender or be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the proceeds of the Loans or Letters of Credit or
of the existence or possible existence of any Default or Event of Default.
11.04 Reliance by Lead Agents. Each Lead Agent shall be entitled to rely, and shall
be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, facsimile transmission, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Credit Parties), independent
accountants and other experts selected by such Lead Agent. Each Lead Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of taking or continuing to take
any such action. Each Lead Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Credit Documents in accordance with a request of
the Required Lenders (or to the extent specifically provided in Section 12.12(a), all the Lenders),
and such request and any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders.
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11.05 Notice of Default. No Lead Agent shall be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default hereunder unless such Lead Agent has received
notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event
of Default and stating that such notice is a “notice of default”. In the event that any Lead Agent
receives such a notice, such Lead Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders; provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action, with respect to
such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.
11.06 Non-Reliance on Lead Agents and Other Lenders. Each Lender expressly
acknowledges that no Lead Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or warranties to it and that no act
by any Lead Agent hereafter taken, including any review of the affairs of the Borrower or any
Subsidiary, shall be deemed to constitute any representation or warranty by any Lead Agent to any
Lender. Each Lender represents to each Lead Agent that it has, independently and without reliance
upon any Lead Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the business, assets,
operations, property, financial and other conditions, prospects and creditworthiness of the
Borrower and its Subsidiaries and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and without reliance upon
any Lead Agent or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, assets, operations, property, financial and other
condition, prospects and creditworthiness of the Borrower and its Subsidiaries. Except for
notices, reports and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Lead Agent shall have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations, assets, property,
financial and other conditions, prospects or creditworthiness of the Borrower or any of its
Subsidiaries which may come into the possession of such Lead Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
11.07 Indemnification. The Lenders agree to indemnify each Lead Agent in its capacity
as such ratably according to the sum of aggregate Revolving Loan Commitments (or, if the Total
Revolving Loan Commitment has been terminated, their aggregate Revolving Loan Commitments as in
effect immediately prior to such termination), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses or
disbursements of any kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Obligations) be imposed on, incurred by or asserted against such
Lead Agent in its capacity as such in any way relating to or arising out of this Agreement or any
other Credit Document, or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted to be taken by any Lead
Agent under or in connection with any of the foregoing, but
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only to the extent that any of the
foregoing is not paid by the Borrower or any of its Subsidiaries; provided that no Lender
shall be liable to any Lead Agent for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from such Lead Agent’s gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision). If
any indemnity furnished to any Lead Agent for any purpose shall, in the opinion of such Lead
Agent, be insufficient or become impaired, such Lead Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section 11.07 shall survive the payment of all Obligations.
11.08 Lead Agents in Their Individual Capacities. Each Lead Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of business with the
Borrower and/or any of its Subsidiaries as though such Lead Agent were not a Lead Agent hereunder.
With respect to the Loans made by it, Letters of Credit issued by it and all Obligations owing to
it, each Lead Agent shall have the same rights and powers under this Agreement and each other
Credit Document as any Lender and may exercise the same as though it were not a Lead Agent, and the
terms “Lender” and “Lenders” shall include each Lead Agent in its individual capacity.
11.09 Successor Lead Agents, etc. (a) Each Lead Agent may resign from the
performance of all its functions and duties hereunder and/or under the other Credit Documents
(including, without limitation, its functions and duties as Collateral Agent) at any time by giving
30 Business Days’ prior written notice to the Lenders and, unless a Default or an Event of Default
under Section 9.05 then exists, the Borrower. Any such resignation by a Lead Agent hereunder shall
also constitute its resignation (if applicable) as a Letter of Credit Issuer and a Swingline
Lender, in which case the resigning Lead Agent (x) shall not be required to issue any further
Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of
its rights as Letter of Credit Issuer or Swingline Lender, as the case may be, with respect to any
Letter of Credit issued by it, or Swingline Loans made by it, prior to the date of such
resignation. Such resignation shall take effect upon (i) in the case of the Lead Agent serving as
Administrative Agent and/or Collateral Agent, the appointment of a successor Administrative Agent
and/or Collateral Agent pursuant to clauses (b) and (c) below or as otherwise provided below and
(ii) in the case of any other Lead Agent, on such 30th Business Day following delivery
of the notice described above.
(b) Upon any such notice of resignation by a Lead Agent then serving as Administrative Agent
and Collateral Agent, the Required Lenders shall appoint a successor Lead Agent hereunder and/or
under the other Credit Documents to act in such capacities which shall be a commercial bank or
trust company acceptable to the Borrower, which acceptance shall not be unreasonably withheld or
delayed (provided that the Borrower’s approval shall not be required if an Event of Default
then exists).
(c) If a successor Lead Agent shall not have been so appointed within such 30 Business Day
period as contemplated by preceding clause (b), the Administrative Agent, with the consent of the
Borrower (which consent shall not be unreasonably withheld or delayed, provided that the
Borrower’s consent shall not be required if an Event of Default then exists), shall then appoint a
successor Lead Agent who shall serve as Administrative Agent and
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Collateral Agent hereunder and/or
under the other Credit Documents until such time, if any, as the Required Lenders appoint a
successor Lead Agent to act in such capacities as provided above.
(d) If no successor Lead Agent has been appointed pursuant to clause (b) or (c) above by the
30th Business Day after the date such notice of resignation was given by such Lead Agent, such Lead
Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all
the duties of such Lead Agent hereunder and/or under any other Credit Document until such time, if
any, as the Lenders appoint a successor Lead Agent as provided above.
(e) Upon a resignation of any Lead Agent pursuant to this Section 11.09, such Lead Agent shall
remain indemnified to the extent provided in this Agreement and the other Credit Documents and the
provisions of this Section 11 shall continue in effect for the benefit of such Lead Agent for all
of its actions and inactions while serving as such Lead Agent.
11.10 Collateral Matters. (a) Each Lender authorizes and directs the Collateral
Agent to enter into the Security Documents for the benefit of the Lenders and the other Secured
Creditors. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will
be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required
Lenders in accordance with the provisions of this Agreement or the Security Documents, and the
exercise by the Required Lenders of the powers set forth herein or therein, together with such
other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders. The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the
necessity of any notice to or further consent from any Lender, from time to time prior to an Event
of Default, to take any action with respect to any Collateral or Security Documents which may be
necessary to perfect and maintain perfected the security interest in and Liens upon the Collateral
granted pursuant to the Security Documents.
(b) The Lenders hereby authorize the Collateral Agent, at its option and in its discretion, to
release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon
termination of the Commitments and payment and satisfaction of all of the Obligations (other than
inchoate indemnification obligations) at any time arising under or in respect of this Agreement or
the Credit Documents or the transactions contemplated hereby or thereby, (ii) constituting property
being sold or otherwise disposed of (to Persons other than the Borrower and its Subsidiaries) in
compliance with Section 8.02, (iii) if approved, authorized or ratified in writing by the Required
Lenders (or all of the Lenders hereunder, to the extent required by Section 12.12) or (iv) as
otherwise may be expressly provided in the relevant Security Documents. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the Collateral Agent’s
authority to release particular types or items of Collateral pursuant to this Section 11.10.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. (a) The Borrower agrees to: (i) pay all reasonable
out-of-pocket costs and expenses of (x) the Agents, whether or not the transactions herein
contemplated are
consummated, in connection with the negotiation, preparation,
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execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and disbursements of
White & Case LLP), (y) each Letter of Credit Issuer incurred in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(z) each Lead Agent, each Letter of Credit Issuer, each Swingline Lender and each of the Lenders in
connection with the enforcement of or protection of its rights under the Credit Documents and the
documents and instruments referred to therein (including, without limitation, the reasonable fees
and disbursements of counsel for each Lead Agent and for each of the Lenders incurred during any
workout, restructuring or negotiations in respect of any Credit Event); (ii) pay and hold each of
the Lenders harmless from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and save each of the Lenders harmless from and against any
and all liabilities with respect to or resulting from any delay or omission (other than to the
extent attributable to such Lender) to pay such taxes; and (iii) indemnify each Agent, the
Collateral Agent, each Letter of Credit Issuer, each Swingline Lender and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with, or as a result of (i) the execution or delivery of this Agreement, any other
Credit Document or any agreement or instrument contemplated hereby or thereby, the performance by
the parties hereto of their respective obligations hereunder or thereunder or the consummation of
the Transaction or any other transactions contemplated hereby or thereby, (ii) any Loan or Letter
of Credit or the use of the proceeds therefrom (including any refusal by any Letter of Credit
Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any property owned,
leased or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability
related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claims, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee. To the extent that the undertaking to
indemnify, pay or hold harmless any Agent, the Collateral Agent, any Letter of Credit Issuer,
either Swingline Lender or any Lender set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
(b) To the extent that the Borrower fails to pay any amount required to be paid by it to any
Agent, the Collateral Agent, any Letter of Credit Issuer or either Swingline Lender under paragraph
(a) of this Section, each Lender severally agrees to pay to such Agent, the Collateral Agent, such
Letter of Credit Issuer or such Swingline Lender, as the case may be, such Lender’s proportional
share (determined (x) using such Lender’s respective “percentage” as used in determining the
Required Lenders as if there were no Defaulting Lenders and (y) as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
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amount; provided that the unreimbursed expense or indemnified loss, claims, damage,
liability or related expense, as the case may be, was incurred by or asserted against such Agent,
the Collateral Agent, such Letter of Credit Issuer or such Swingline Lender in its capacity as
such.
(c) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, any Credit Document or any agreement or instrument contemplated
thereby, the Transaction, any Loan or Letter of Credit or the use of the proceeds thereof.
(d) All amounts due under this Section shall be payable promptly after written demand
therefor.
12.02 Right of Setoff. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default, each Lender and each of its Affiliates is hereby authorized at any time or
from time to time, to the fullest extent permitted by law, without presentment, demand, protest or
other notice of any kind to any Credit Party or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits (general or special,
time or demand, provisional or final) and any other obligations at any time held or owing by such
Lender or Affiliate (including, without limitation, by branches and agencies of such Lender
wherever located) to or for the credit or the account of any Credit Party against and on account of
the Obligations and liabilities of such Credit Party to such Lender under this Agreement or under
any of the other Credit Documents, including, without limitation, all interests in Obligations of
such Credit Party purchased by such Lender pursuant to Section 12.06(b), and all other claims of
any nature or description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Lender shall have made any demand hereunder and
although said Obligations, liabilities or claims, or any of them, shall be contingent or unmatured.
The rights of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
12.03 Notices. (a) Except as otherwise expressly provided herein (including Section
12.03(b) below), all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile transmission or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to a Credit Party, at the address
specified opposite its signature below or in the other relevant Credit Documents, as the case may
be; if to any Lender, at its address specified for such Lender on Annex II hereto or its
Administrative Questionnaire; or, at such other address as shall be designated by any party in a
written notice to the other parties hereto. All such notices and communications shall be
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, and shall be effective
when received.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Sections 1, 2, 3 or 4
unless otherwise agreed by the Administrative Agent and the applicable Lender. The
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Administrative
Agent or the Borrower may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or communications.
12.04 Benefit of Agreement. (a) This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of the parties hereto,
provided that (i) the Borrower may not assign or transfer any of its interests hereunder,
except to the extent any such assignment results from the consummation of a transaction permitted
under Section 8.02, without the prior written consent of each of the Lenders (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) the
rights of each Lender to transfer, assign or grant participations in its rights and/or obligations
hereunder shall be limited as set forth below in this Section 12.04. Notwithstanding the foregoing
or anything else in this Section 12.04, any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and
including further, in the case of any Lender that is a fund, all or any portion of its Notes of
Loans to its trustee or to a collateral agent or to another creditor providing credit or credit
support to such Lender in support of its obligations to such trustee, such collateral agent or a
holder of, or any other representative of a holder of, such obligations, or such other creditor, as
the case may be, and this Section shall not apply to any such pledge or assignment of a security
interest; provided however that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.
(b) Each Lender shall have the right to transfer, assign or grant participations in all or any
part of its remaining rights and obligations hereunder on the basis set forth below in this clause
(b).
(A) Assignments. At any time, each Lender may assign pursuant to an Assignment
Agreement substantially in the form of Exhibit E hereto (each, an “Assignment Agreement”)
all or a portion of its rights and obligations hereunder (including all or a portion of any of its
Commitments and the Loans at the time owing to it) pursuant to this clause (b)(A) to one or more
Lenders and/or their affiliates and/or one or more Eligible Transferees, in any such case with the
prior written consent (such consent not to be unreasonably withheld or delayed) of the Borrower,
the Administrative Agent and each Significant Letter of Credit Issuer, provided that the
consent of the Borrower shall not be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other
assignee. Each assignment shall be subject to the following additional conditions:
(I) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund of a Lender, or an assignment of the entire remaining amount of the
assigning Lender’s Revolving Loan Commitment or Loans of any Tranche, the amount of the
Revolving Loan Commitment or Loans of each Tranche of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000
in the case of Revolving Loan Commitments (and
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related Obligations), unless each of the
Borrower and the Administrative Agent otherwise consent, provided that no such
consent of the Borrower shall be required if an Event of Default has occurred and is
continuing;
(II) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement, provided
that this clause shall not be construed to prohibit the assignment of a proportionate part
of all the assigning Lender’s rights and obligations in respect of one Tranche of
Commitments or Loans; and
(III) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.
Any assignment to another Lender pursuant to this clause (b)(A) will become effective upon the
payment to the Administrative Agent by (I) either the assigning or the assignee Lender or (II) in
the case of an assignment pursuant to Section 1.14, the Replacement Lender, of a nonrefundable
assignment fee of $3,500, the satisfaction of clause (III) of the preceding sentence (if
applicable), the receipt of any written consents to such assignment required above and the
recording by the Administrative Agent of such assignment, and the resultant effects thereof on the
Commitments and outstanding Loans of the assigning Lender and the assignee Lender, in the Register,
the Administrative Agent hereby agreeing to effect such recordation no later than five Business
Days after its receipt of a written notification by the assigning Lender and the assignee Lender of
the proposed assignment, provided that the Administrative Agent shall not be required to
(but may if it so elects) so record any assignment in the Register on or after the date on which
any proposed amendment, modification or supplement in respect of this Agreement has been circulated
to the Lenders for approval until the earlier of (x) the effectiveness of such amendment,
modification or supplement in accordance with Section 12.12(a) or (y) 30 days following the date on
which such proposed amendment, modification or supplement was circulated to the Lenders. Upon the
effectiveness of any assignment pursuant to this clause (b)(A), (x) the assignee will become a
“Lender” for all purposes of this Agreement and the other Credit Documents with a Commitment and/or
outstanding Loans as so recorded by the Administrative Agent in the Register, and to the extent of
such assignment, the assigning Lender shall be relieved of its obligations hereunder with respect
to the portion of its Commitment and/or Loans being assigned, (y) Annex I shall be deemed to be
amended to reflect the Commitment and outstanding Loans of the respective assignee and of the other
Lenders and (z) the Borrower shall issue new Notes (in exchange for the Note of the assigning
Lender) to the assigning Lender (to the extent such Lender’s Commitment or outstanding Loans, as
the case may be, are not reduced to zero as a result of such assignment) and to the assignee
Lender, in each case to the extent requested by the assigning Lender or assignee Lender, as the
case may be, in conformity with the requirements of Section 1.05 to the extent needed to reflect
the revised Commitments and/or outstanding Loans of such Lenders. The Administrative Agent will
(x) notify each Letter of Credit Issuer within 5 Business
Days of the effectiveness of any assignment hereunder and (y) prepare on the last Business Day
of each calendar quarter during which an assignment has become effective pursuant to this clause
(b)(A) a new Annex I giving effect to all such assignments effected during such quarter and will
promptly provide same to the Borrower and each of the Lenders. No assignment shall be
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effective
for purposes of this Agreement unless it has been recorded in the Register as provided in this
paragraph.
(B) Participations. Each Lender may transfer, grant or assign participations in all
or any part of such Lender’s interests and obligations hereunder pursuant to this clause (b)(B) to
any Eligible Transferee, provided that (i) such Lender shall remain a “Lender” for all
purposes of this Agreement and the transferee of such participation shall not constitute a Lender
hereunder and (ii) no participant under any such participation shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (u) extend the scheduled final maturity of any Loan, Commitment or Note,
or any portion thereof, in which such participant is participating, (v) reduce the interest rate or
extend the time of payment of interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) or Fees applicable to any of the Loans, Commitments or
Letters of Credit or reduce the principal amount thereof, (w) release Xxxxxxxx Tobacco from its
Guaranty, (x) at any time Collateral is pledged pursuant to the Security Documents release (other
than pursuant to the automatic release provided for in Section 7.10 or as otherwise expressly
permitted by the Security Documents) all or substantially all of the Collateral, (y) amend, modify
or waive any provision of this clause (B) (other than technical amendments which do not adversely
affect the rights of any Lender) or (z) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement. In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other Credit Documents
(the participant’s rights against the granting Lender in respect of such participation to be those
set forth in the agreement with such Lender creating such participation) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such participation,
provided that such participant shall be entitled to receive additional amounts under
Sections 1.10, 1.11, 2.05 and 4.04 on the same basis as if it were a Lender. In addition, each
agreement creating any participation must include an agreement by the participant to be bound by
the provisions of Section 12.15.
(c) Notwithstanding any other provisions of this Section 12.04, no transfer or assignment of
the interests or obligations of any Lender hereunder or any grant of participations therein shall
be permitted if such transfer, assignment or grant would require the Borrower or any Guarantor to
file a registration statement with the SEC or to qualify the Loans under the “Blue Sky” laws of any
State.
(d) Each Lender initially party to this Agreement hereby represents, and each Person that
becomes a Lender pursuant to an assignment permitted by the preceding clause (b)(A) will upon its
becoming party to this Agreement represent, that it is an Eligible Transferee which makes loans in
the ordinary course of its business and that it will make or acquire Loans for its own account in
the ordinary course of such business, provided that, subject to the preceding clauses (a)
through (c), the disposition of any promissory notes or other evidences of or interests in
Indebtedness held by such Lender shall at all times be within its exclusive control.
(e) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (each, an “SPC”) of such
Granting Lender, identified as such in writing from time to time by the respective Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the Borrower all
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or any part
of any Revolving Loan that such Granting Lender would otherwise be obligated to make to the
Borrower pursuant to Section 1.01(a), provided that (i) nothing herein shall constitute a
commitment to make any Revolving Loan by any SPC and (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Loan, the respective Granting Lender
shall be obligated to make such Revolving Loan pursuant to the terms hereof. The making of a
Revolving Loan by an SPC hereunder shall utilize the Revolving Loan Commitment of the respective
Granting Lender to the same extent, and as if, such Revolving Loan were made by such Granting
Lender. Each party hereto hereby agrees that (x) no SPC shall be liable for any payment under this
Agreement for which a Lender would otherwise be liable and (y) the Granting Lender for any SPC
shall be (and hereby agrees that it is) liable for any payment under this Agreement for which the
SPC would be liable in the absence of preceding clause (x). In furtherance of the foregoing, each
party hereto hereby agrees that, prior to the date that is one year and one day after the payment
in full of all outstanding senior indebtedness of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of the United States or
any State thereof. In addition, notwithstanding anything to the contrary contained in this Section
12.04, any SPC may (i) with notice to, but without the prior written consent of, the Borrower or
the Administrative Agent and without paying any processing fee therefor, assign all or a portion of
its interests in any Loans to its Granting Lender or to any financial institutions (if consented to
by the Borrower and the Administrative Agent) providing liquidity and/or credit facilities to or
for the account of such SPC to fund the Revolving Loans made by such SPC or to support the
securities (if any) issued by such SPC to fund such Revolving Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of a surety, guarantee or credit or liquidity enhancement to
such SPC.
(f) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one its offices a copy of each Assignment Agreement delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and Unpaid Drawings owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent, each Letter of Credit Issuer and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, any Letter of Credit Issuer and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the part of any Lead
Agent, the Administrative Agent, the Collateral Agent, any Letter of Credit Issuer, either
Swingline Lender or any Lender in exercising any right, power or privilege hereunder or under any
other Credit Document and no
course of dealing between any Credit Party and any Lead Agent, the Collateral Agent, either
Swingline Lender, any Letter of Credit Issuer or any Lender shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise of any other right,
power or privilege hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights
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or remedies which any Lead Agent, the Collateral Agent,
either Swingline Lender, any Letter of Credit Issuer or any Lender would otherwise have. No notice
to or demand on any Credit Party in any case shall entitle such Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a waiver of the rights of
the Lead Agents, the Collateral Agent, the Swingline Lenders, the Letter of Credit Issuers or the
Lenders to any other or further action in any circumstances without notice or demand. No waiver of
any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by Section 12.12(a), and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality for the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether
the Administrative Agent, any Lender or any Letter of Credit Issuer may have had notice or
knowledge of such Default or Event of Default at the time.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees that promptly after its
receipt of each payment from or on behalf of any Credit Party in respect of any Obligations of such
Credit Party, it shall, except as otherwise provided in this Agreement or any other Credit
Document, distribute such payment to the Lenders pro rata based upon their
respective shares, if any, of the Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by
voluntary payment, by realization upon security, by the exercise of the right of setoff or Lender’s
lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents,
or otherwise) which is applicable to the payment of the principal of, or interest on, the Loans or
Fees, of a sum which with respect to the related sum or sums received by other Lenders is in a
greater proportion than the total of such Obligations then owed and due to such Lender bears to the
total of such Obligations then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash (without recourse
or warranty) from the other Lenders an interest in the Obligations of the respective Credit Party
to such Lenders in such amount as shall result in a proportional participation by all of the
Lenders in such amount; provided that if all or any portion of such excess amount is
thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest.
12.07 Calculations; Computations. (a) The financial statements to be furnished to
the Administrative Agent (for the benefit of the Lenders) pursuant hereto shall be made and
prepared in accordance with GAAP consistently applied throughout the periods involved (except as
set forth in the notes
thereto or as otherwise disclosed in writing by the Borrower to the Administrative Agent);
provided that, except as otherwise specifically provided herein, all computations
determining compliance with Section 8, including definitions used therein, shall utilize accounting
principles and policies in effect at the time of the preparation of, and in conformity with those
used to prepare, the financial statements for the fiscal year of the Borrower ended December 31,
2006 delivered to the Administrative Agent pursuant to Section 7.01(a), provided that in
the event GAAP shall be modified from that in effect at the time of the preparation of such
financial statements, the Borrower shall be entitled to utilize GAAP, as so modified, for purposes
of such computations to the extent that (x) the Borrower gives the Administrative Agent 30 days’
prior written notice of such proposed modification and (y) prior
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thereto the Borrower and the Lead
Agents shall have agreed upon adjustments, if any, to Sections 8.05, 8.07, 8.08 and 8.13 (and the
definitions used therein), the sole purpose of which shall be to give effect to such proposed
change (it being understood and agreed that to the extent that the Borrower and the Lead Agents
cannot agree on appropriate adjustments to such Sections (or that no adjustments are necessary),
the proposed change may not be effected); and provided, further, that if at any
time the computations determining compliance with Section 8 (and the definitions used therein)
utilize accounting principles different from those utilized in the financial statements furnished
to the Administrative Agent pursuant to this Agreement, such financial statements shall be
accompanied by reconciliation work-sheets. Notwithstanding the foregoing, for purposes of the
computations determining compliance with Section 8, all expenses and other charges arising from any
settlement of tobacco liability which are required by GAAP to be retroactively applied to a
previous fiscal quarter of the Borrower shall instead be accrued in the fiscal quarter in which
such expenses and charges occur.
(b) All computations of interest and Fees hereunder shall be made on the actual number of days
elapsed over a year of 360 days (or in the case of Reference Rate Loans determined by reference to
the Base Rate, 365/366 days).
(c) All determinations of the Stated Amount of Letters of Credit and of the principal amount
of Unpaid Drawings, in each case to the extent denominated in a currency other than U.S. Dollars,
shall be made by converting same into U.S. Dollars at (x) if a Currency Agreement has been entered
into by the Borrower and/or any of its Subsidiaries in connection with such Indebtedness, and is in
effect at the time of such determination, the rate provided in such Currency Agreement,
provided that this clause (x) shall not be applicable (I) unless the Administrative Agent
has received sufficient information from the Borrower to determine the exchange rate established by
such Currency Agreement and the duration thereof, or (II) to any determination of the Borrower’s
obligation to reimburse in U.S. Dollars a Drawing under a Letter of Credit denominated in a
currency other than U.S. Dollars, (y) in the case of a determination of the Borrower’s obligation
to reimburse in U.S. Dollars a Drawing under a Letter of Credit denominated in a currency other
than U.S. Dollars, the spot exchange rate for the currency in question of the Letter of Credit
Issuer on the date of such Drawing or (z) if the provisions of the foregoing clauses (x) and (y)
are not applicable, the “official” exchange rate, if applicable, or the spot exchange rate for the
currency in question calculated by the Administrative Agent on the last Business Day of the month
then last ended preceding the date on which any such determination is being made and at such other
times as the Administrative Agent elects to make such determination, it being understood that the
Administrative Agent shall
have no obligation to make any such other determinations. The Administrative Agent will
promptly notify the Borrower and each Letter of Credit Issuer of its determinations hereunder.
12.08 Governing Law; Submission to Jurisdiction; Venue. (a) THIS AGREEMENT AND THE
OTHER CREDIT DOCUMENTS (OTHER THAN CERTAIN SECURITY DOCUMENTS EXPRESSLY PROVIDING OTHERWISE) AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the United States District
Court of the Southern District
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of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement or any other Credit Document, or for
recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that any Lead Agent, the
Collateral Agent, any Letter of Credit Issuer, either Swingline Lender or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement against the Borrower or its
properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (a) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 12.03. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
12.09 Counterparts; Severability. (a) This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the Administrative Agent
constitute the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement. A
set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
(b) Any provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any jurisdiction.
12.10 Execution. The Fifth Amended and Restated Credit Agreement shall be fully
executed on the date (the “Fifth Restatement Execution Date”) on which the Borrower, each
Lender (as defined in the Fourth Amended and Restated Credit Agreement) and each Lender shall have
signed a copy thereof (whether the same or different copies) and shall have delivered the same to
the Administrative Agent at the Administrative Agent’s Office or, in the case of the Lenders, shall
have given to the Administrative Agent telephonic (confirmed in writing), written, telex or
facsimile notice (actually received) at such office that the same has
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been signed and mailed to it.
The Administrative Agent will give the Borrower and each Lender prompt written notice of the
occurrence of the Fifth Restatement Execution Date.
12.11 Headings Descriptive. The headings of the several sections and subsections of
this Agreement are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
12.12 Amendment or Waiver. (a) Neither this Agreement nor any other Credit Document
nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such
change, waiver, discharge or termination is in writing signed by the Required Lenders;
provided that (x) no such change, waiver, discharge or termination shall, without the
consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected
thereby, (i) extend the scheduled final maturity of any Loan or Note, or any portion thereof, or
reduce the rate or extend the time of payment of interest (other than as a result of waiving the
applicability of any post-default increase in interest rates) thereon or Fees (it being understood
that any amendment or modification to the financial definitions in this Agreement or to Section
12.07(a) shall not constitute a reduction in the rate of interest or Fees for the purposes of this
clause (i)) or reduce the principal amount thereof, or increase the Commitment of any Lender over
the amount thereof then in effect (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default, mandatory repayments or a mandatory reduction
in the Total Commitment shall not constitute an increase of the Commitment of any Lender, and that
an increase in the available portion of any Commitment of any Lender shall not constitute an
increase of the Commitment of such Lender), (ii) release any Subsidiary from the Subsidiary
Guaranty, except in connection with a sale or other disposition of such Subsidiary permitted by
this Agreement, (iii) at any time Collateral is pledged pursuant to the Security Documents release
(other than pursuant to the automatic release provided for in Section 7.10 or as otherwise
expressly permitted by the Security Documents) all or substantially all of the Collateral, (iv)
amend, modify or waive any provision of this Section (other than technical amendments which
do not adversely affect the rights of any Lender), or Section 12.06 in a manner that would
alter the pro rata sharing of payments required thereby, (v) reduce the percentage
specified in the definition of Required Lenders or (vi) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement; and (y) the financial
covenants set forth in Sections 8.05, 8.07, 8.08 and 8.13 (and the defined terms used therein) may
be adjusted with the consent of the Borrower and the Lead Agents to the extent provided in Sections
7.09 and 12.07(a). No provision of Section 11 may be amended or modified without the consent of
any Lead Agent adversely affected thereby. The obligations of each Swingline Lender to make
Swingline Loans, the terms of any such Swingline Loans and the obligations of the other Lenders to
fund Mandatory Borrowings shall not be amended or modified without the consent of each Swingline
Lender adversely affected thereby. The terms of Section 2 shall not be amended or modified without
the consent of any Letter of Credit Issuer adversely affected thereby.
(b) If, in connection with any proposed change, waiver, discharge or termination of or to any
of the provisions of this Agreement as contemplated by clause (x) of the proviso appearing in the
first sentence of Section 12.12(a), the consent of the Required Lenders is obtained but the consent
of one or more of such other Lenders whose consent is required is not obtained, then the Borrower
shall have the right to replace each such non-consenting Lender or
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Lenders with one or more
Replacement Lenders pursuant to Section 1.14, so long as (i) at the time of such replacement, each
such Replacement Lender consents to the proposed change, waiver, discharge or termination, and (ii)
all non-consenting Lenders whose individual consent is required are treated the same.
12.13 Survival. All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto
and shall survive the execution and delivery of this Agreement and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation by any such other party or in
its behalf and notwithstanding that any Lead Agent, the Administrative Agent, the Collateral Agent,
any Letter of Credit Issuer, either Swingline Lender or any Lender may have had notice or knowledge
of any Default or Event of Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect as long as the principal of any
accrued interest on any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Revolving Loan
Commitments have not expired or terminated. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 2.05, 4.04, 11.07 or 12.01 shall survive the execution and
delivery of this Agreement and the making of the Loans, the issuances of Letters of Credit, the
repayment of the Obligations and the termination of the Total Commitment.
12.14 Domicile of Loans. Subject to Section 12.04, each Lender may transfer and carry
its Loans at, to or for the account of any branch office, subsidiary or affiliate of such Lender;
provided that the Borrower shall not be responsible for costs arising under Section 1.10,
1.11, 2.05 or 4.04
resulting from any such transfer (other than a transfer pursuant to Section 1.12) to the
extent not otherwise applicable to such Lender prior to such transfer.
12.15 Confidentiality. (a) Each of the Agents, the Letter of Credit Issuer and the
Lenders agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (ii) to the extent requested by
any regulatory authority, (iii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iv) to any other party to this Agreement, (v) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this Section, to (vii) any assignee of or participant
in, or any prospective assignee of or participant in (which shall be an Eligible Transferee), any
of its rights or obligations under this Agreement or (viii) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (ix) with the consent of the Borrower or (x) to the extent such Information (A)
becomes publicly available other than as a result of a breach of this Section 12.15 or (B) becomes
available to the Administrative Agent, the Letter of Credit Issuer or any Lender on a
non-confidential basis from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower or any of its
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Subsidiaries
relating to the Borrower, its Subsidiaries or their businesses, other than any such information
that is available to the Administrative Agent, the Letter of Credit Issuer or any Lender on a
non-confidential basis prior to disclosure by the Borrower or any of its Subsidiaries;
provided that, in the case of information received from the Borrower or any of its
Subsidiaries after the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
(b) EACH LENDER ACKNOWLEDGES THAT THE INFORMATION AS DEFINED IN SECTION 12.15(a)
FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING
THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS
DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT
WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE
LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER
OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS AFFILIATES, THE OTHER CREDIT
PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES) AND ITS SECURITIES.
ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT
MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND
APPLICABLE LAW.
12.16 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
12.17 USA Patriot Act. Each Lender hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and
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other information
that will allow such Lender to identify the Borrower in accordance with the Act.
12.18 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively, the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Rate to the date of repayment, shall have been received by such Lender.
12.19 Post-Closing Actions. Notwithstanding anything to the contrary contained in
this Agreement or the other Credit Documents, the parties hereto acknowledge and agree that the
actions described on Annex X shall be completed in accordance with Annex X. The provisions of
Annex X shall be deemed incorporated herein by reference as fully as if set forth herein in its
entirety.
All provisions of this Credit Agreement and the other Credit Documents (including, without
limitation, all conditions precedent, representations, warranties, covenants, events of default and
other agreements herein and therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the time periods required
above, rather than as otherwise provided in the Credit Documents). The parties hereto acknowledge
and agree that the failure to take any of the actions required above, within the relevant time
periods required above, shall give rise to an immediate Event of Default pursuant to this
Agreement.
12.20 Special Provisions Relating to Amendment and Restatement. (a) The Required
Lenders under, and as defined in, the Fourth Amended and Restated Credit Agreement hereby consent
to the “refinancing indebtedness” under this Agreement being treated as “indebtedness pursuant to
the Credit Agreement” for purposes of the Pledge Agreement, the Security Agreement, the
Intercompany Subordination Agreement and the Mortgages. The Borrower, for its part, hereby gives
notice that the refinancing indebtedness under this Agreement shall be treated as “issued under the
Credit Agreement” for purposes of the Pledge Agreement, Security Agreement, the Intercompany
Subordination Agreement and the Mortgages.
(b) The parties hereto acknowledge and agree that:
(i) the Borrower and its Subsidiaries (as defined in the Fourth Amended and Restated
Credit Agreement) executed and delivered the Security Documents (as defined in the Fourth
Amended and Restated Credit Agreement) in favor of the Collateral Agent
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on behalf of the
Secured Creditors (as defined in the Fourth Amended and Restated Credit Agreement) to secure
the payment and performance of, inter alia, the Obligations (as defined in
the Fourth Amended and Restated Credit Agreement);
(ii) the security interests granted to the Collateral Agent on behalf of the Secured
Creditors pursuant to the Security Documents (as defined in the Fourth Amended and Restated
Credit Agreement) shall remain outstanding and in full force and effect, without
interruption or impairment of any kind, in accordance with the terms of such Security
Documents and shall continue to secure the Obligations (as defined in such Security
Documents);
(iii) the Obligations represent, among other things, the amendment, restatement,
renewal, extension, consolidation and modification of the Obligations (as defined in the
Fourth Amended and Restated Credit Agreement) arising in connection with the Fourth Amended
and Restated Credit Agreement and other Credit Documents
(as defined in the Fourth Amended and Restated Credit Agreement) executed in connection
therewith;
(iv) (a) the Fourth Amended and Restated Credit Agreement and the other Credit
Documents (as defined in the Fourth Amended and Restated Credit Agreement) executed in
connection therewith and the collateral pledged thereunder shall secure, without
interruption or impairment of any kind, all existing Indebtedness (as defined in the Fourth
Amended and Restated Credit Agreement) under the Fourth Amended and Restated Credit
Agreement and the other Credit Documents (as defined in the Fourth Amended and Restated
Credit Agreement) executed in connection therewith, as they may be amended, restated,
renewed, extended, consolidated and modified hereunder, together with all other Obligations
hereunder; (b) all Liens evidenced by the Credit Documents (as defined in the Fourth Amended
and Restated Credit Agreement) executed in connection therewith are hereby ratified,
confirmed and continued; and (c) the Credit Documents are intended to restate, renew,
extend, consolidate, amend and modify the Fourth Amended and Restated Credit Agreement and
the other Credit Documents (as defined in the Fourth Amended and Restated Credit Agreement)
executed in connection therewith; and
(v) (a) the provisions of the Fourth Amended and Restated Credit Agreement and the
other Credit Documents (as defined in the Fourth Amended and Restated Credit Agreement)
executed in connection therewith, to the extent restated, renewed, extended, consolidated,
amended and modified hereby or the other corresponding Credit Documents, are hereby
superseded and replaced by the provisions hereof and of the corresponding other Credit
Documents; (b) the Notes restate, renew, extend, consolidate, amend, modify, replace, are
substituted for and supersede, but do not extinguish, the Indebtedness (as defined in the
Fourth Amended and Restated Credit Agreement) arising under the Notes (as defined in the
Fourth Amended and Restated Credit Agreement) issued pursuant to the Fourth Amended and
Restated Credit Agreement; and (c) the execution and delivery of the Credit Documents, and
the performance by Credit Parties of their respective obligations thereunder shall not
constitute a novation.
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12.21 Termination of Certain Commitments Under the Fourth Amended and Restated Credit
Agreement. Notwithstanding anything to the contrary contained in Section 3.02 of the Fourth
Amended and Restated Credit Agreement, the Borrower and Required Lenders (determined immediately
prior to the occurrence of the Fifth Restatement Effective Date) hereby (i) agree that the Borrower
may voluntarily terminate the Commitments (as defined in the Fourth Amended and Restated Credit
Agreement) of the lenders party to the Fourth Amended and Restated Credit Agreement identified on
Annex XII hereto (with such termination to be effective concurrently with the occurrence of the
Fifth Restatement Effective Date) and (ii) waive any requirements under Section 3.02 of the Fourth
Amended and Restated Credit Agreement that (a) the Borrower provide three Business Days’ prior
notice of the voluntary reduction of such Commitments and (b) a voluntary reduction of such
Commitments apply proportionately to reduce the Commitments of each RL Lender under, and as defined
in, the Fourth Amended and Restated Credit Agreement.
SECTION 13. Borrower Guaranty.
13.01 The Guaranty. In order to induce the Lenders to enter into this Agreement and
to extend credit hereunder, to induce the Credit Card Issuers to enter into and/or maintain Secured
Credit Card Agreements, to induce the Lenders or any of their respective affiliates to enter into
Hedging Agreements and, in recognition of the direct benefits to be received by the Borrower from
the proceeds of the Loans, the issuance of the Letters of Credit and the entering into and/or
maintenance of Secured Credit Card Agreements and Hedging Agreements, the Borrower hereby agrees as
follows: the Borrower hereby unconditionally and irrevocably guarantees, as primary obligor and
not merely as surety the full and prompt payment when due, whether upon maturity, acceleration or
otherwise, of any and all of the Guaranteed Obligations to the Guaranteed Creditors. If any or all
of the Guaranteed Obligations to the Guaranteed Creditors becomes due and payable hereunder, the
Borrower unconditionally promises to pay such indebtedness to the Guaranteed Creditors, or order,
on demand, together with any and all expenses which may be incurred by the Guaranteed Creditors in
collecting any of the Guaranteed Obligations. This Borrower Guaranty is a guaranty of payment and
not of collection. This Borrower Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to have been created in
reliance hereon. If claim is ever made upon any Guaranteed Creditor for repayment or recovery of
any amount or amounts received in payment or on account of any of the Guaranteed Obligations and
any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree
or order of any court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such payee with any
such claimant (including any Guaranteed Party), then and in such event the Borrower agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon the Borrower,
notwithstanding any revocation of this Borrower Guaranty or any other instrument evidencing any
liability of any other Guaranteed Party, and the Borrower shall be and remain liable to the
aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by any such payee.
13.02 Bankruptcy. Additionally, the Borrower unconditionally and irrevocably
guarantees the payment of any and all of the Guaranteed Obligations to the Guaranteed Creditors
whether or not due or payable by any Guaranteed Party upon the
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occurrence of any of the events
specified in Section 9.05, and unconditionally promises to pay such indebtedness to the Guaranteed
Creditors, or order, on demand.
13.03 Nature of Liability. The liability of the Borrower hereunder is exclusive and
independent of any guaranty of the Guaranteed Obligations whether executed by the Borrower, any
other guarantor or by any other party, and the liability of the Borrower hereunder is not affected
or impaired by
(a) any direction as to application of payment by any Guaranteed Party or by any other party,
or (b) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the Guaranteed Obligations, or (c) any payment on or in reduction of any
such other guaranty or undertaking, or (d) any dissolution, termination or increase, decrease or
change in personnel by any Guaranteed Party, or (e) any payment made to the Guaranteed Creditors on
the Guaranteed Obligations which any such Guaranteed Creditor repays to any Guaranteed Party
pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and the Borrower waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding, or (f) any action or inaction of the type
described in Section 13.05, or (g) the lack of validity or enforceability of any Credit Document or
any other instrument relating thereto.
13.04 Independent Obligation. No invalidity, irregularity or unenforceability of all
or any part of the Guaranteed Obligations shall affect, impair or be a defense to this Borrower
Guaranty, and this Borrower Guaranty shall be primary, absolute and unconditional notwithstanding
the occurrence of any event or the existence of any other circumstances which might constitute a
legal or equitable discharge of a surety or guarantor except payment in full of the Guaranteed
Obligations of the Borrower. The obligations of the Borrower hereunder are independent of the
obligations of any Guaranteed Party, any other guarantor or any other Person and a separate action
or actions may be brought and prosecuted against the Borrower whether or not action is brought
against any Guaranteed Party, any other guarantor or any other Person and whether or not any
Guaranteed Party, any other guarantor or any other Person be joined in any such action or actions.
The Borrower waives, to the full extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by any Guaranteed Party
with respect to any Guaranteed Obligations or other circumstance which operates to toll any statute
of limitations as to such Guaranteed Party shall operate to toll the statute of limitations as to
the Borrower.
13.05 Authorization. The Borrower authorizes the Guaranteed Creditors without notice
or demand (except as shall be required by applicable statute and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place or terms of payment of, and/or change or extend the time
of payment of, renew, increase, accelerate or alter, any of the Guaranteed Obligations
(including any increase or decrease in the rate of interest thereon) or any liability
incurred directly or indirectly in respect thereof, and this Borrower Guaranty made shall
apply to the Guaranteed Obligations as so changed, extended, renewed, increased or altered;
-115-
(ii) take and hold security for the payment of the Guaranteed Obligations and sell,
exchange, release, impair, surrender, realize upon or otherwise deal with in any manner and
in any order any property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or indirectly in respect thereof or hereof,
and/or any offset thereagainst;
(iii) exercise or refrain from exercising any rights against any Guaranteed Party or
others or otherwise act or refrain from acting;
(iv) release or substitute any one or more endorsers, guarantors, any Guaranteed Party
or other obligors;
(v) settle or compromise any of the Guaranteed Obligations or any liability (including
any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and
may subordinate the payment of all or any part thereof to the payment of any liability
(whether due or not) of any Guaranteed Party to their respective creditors other than the
Guaranteed Creditors;
(vi) apply any sums by whomsoever paid or howsoever realized to any liability or
liabilities of any Guaranteed Party to the Guaranteed Creditors regardless of what liability
or liabilities of such Guaranteed Party remain unpaid;
(vii) consent to or waive any breach of, or any act, omission or default under, this
Agreement, any other Credit Document, any Secured Credit Card Agreement, any Hedging
Agreement or any of the instruments or agreements referred to herein or therein, or
otherwise amend, modify or supplement this Agreement, any other Credit Document, any Secured
Credit Card Agreement, any Hedging Agreement or any of such other instruments or agreements;
and/or
(viii) take any other action which would, under otherwise applicable principles of
common law, give rise to a legal or equitable discharge of the Borrower from its liabilities
under this Borrower Guaranty.
13.06 Reliance. It is not necessary for the Guaranteed Creditors to inquire into the
capacity or powers of any Party or the officers, directors, partners or agents acting or
purporting to act on their behalf, and any Guaranteed Obligations made or created in reliance upon
the professed exercise of such powers shall be guaranteed hereunder by the Borrower.
13.07 Subordination. Any of the indebtedness of any Guaranteed Party now or hereafter
owing to the Borrower is hereby subordinated to the Guaranteed Obligations of such Guaranteed Party
owing to the Guaranteed Creditors; and if the Administrative Agent so requests at a time when an
Event of Default exists, all such indebtedness of such Guaranteed Party to the Borrower shall be
collected, enforced and received by the Borrower for the benefit of the Guaranteed Creditors and be
paid over to the Administrative Agent on behalf of the Guaranteed Creditors on account of the
Guaranteed Obligations of such Guaranteed Party to the Guaranteed Creditors, but without affecting
or impairing in any manner the liability of the
-116-
Borrower under the other provisions of this
Borrower Guaranty. Prior to the transfer by the Borrower to any Person (other than a
Subsidiary Guarantor) of any note or negotiable instrument evidencing any of the indebtedness
of any Guaranteed Party to the Borrower, the Borrower shall xxxx such note or negotiable instrument
with a legend that the same is subject to this subordination. Without limiting the generality of
the foregoing, the Borrower hereby agrees with the Guaranteed Creditors that it will not exercise
any right of subrogation which it may at any time otherwise have as a result of this Borrower
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or otherwise) until all
Guaranteed Obligations have been irrevocably paid in full in cash.
13.08 Waiver. (a) The Borrower waives any right (except as shall be required by
applicable statute and cannot be waived) to require any Guaranteed Creditor to (i) proceed against
any Guaranteed Party, any other guarantor or any other party, (ii) proceed against or exhaust any
security held from any Party, any other guarantor or any other party or (iii) pursue any other
remedy in any Guaranteed Creditor’s power whatsoever. The Borrower waives any defense based on or
arising out of any defense of any Guaranteed Party, any other guarantor or any other party, other
than payment in full in cash of the Guaranteed Obligations, based on or arising out of the
disability of any Guaranteed Party, any other guarantor or any other party, or the unenforceability
of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of any Guaranteed Party other than payment in full in cash of the Guaranteed
Obligations. The Guaranteed Creditors may, at their election, foreclose on any security held by
the Administrative Agent or any other Guaranteed Creditor by one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or remedy the Guaranteed
Creditors may have against any Guaranteed Party or any other party, or any security, without
affecting or impairing in any way the liability of the Borrower hereunder except to the extent the
Guaranteed Obligations of the Borrower have been paid in full in cash. The Borrower waives any
defense arising out of any such election by the Guaranteed Creditors, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy
of the Borrower against any Guaranteed Party or any other party or any security.
(b) The Borrower waives all presentments, demands for performance, protests and notices,
including, without limitation, notices of nonperformance, notices of protest, notices of dishonor,
notices of acceptance of this Borrower Guaranty, and notices of the existence, creation,
modification or incurring of new or additional Guaranteed Obligations. The Borrower assumes all
responsibility for being and keeping itself informed of each Guaranteed Party’s financial condition
and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which the Borrower assumes and incurs
hereunder, and agrees that the Guaranteed Creditors shall have no duty to advise the Borrower of
information known to it regarding such circumstances or risks.
(c) Until such time as the Guaranteed Obligations have been paid in full in cash, the Borrower
hereby waives all rights of subrogation which it may at any time otherwise have as a result of this
Borrower Guaranty (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise) to
the claims of the Guaranteed Creditors against any other guarantor of the Guaranteed Obligations
and all contractual, statutory or common law rights of
-117-
reimbursement, contribution or indemnity from any Guaranteed Party or any other guarantor
which it may at any time otherwise have as a result of this Borrower Guaranty.
13.09 Payments. All payments made by the Borrower pursuant to this Section 13 shall
be made in U.S. Dollars. All payments made by the Borrower pursuant to this Section 13 will be
made without setoff, counterclaim or other defense, and shall be subject to the payment provisions
applicable to the Borrower in Sections 4.03 and 4.04.
* * *
-118-
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement
to be duly executed and delivered as of the date first above written.
| XXXXXXXX AMERICAN INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President and Treasurer | |||
Signature Page to Credit Agreement
| JPMORGAN CHASE BANK, N.A., Individually and as Administrative Agent |
||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: | Xxxxxx X. Xxx | |||
| Title: | Executive Director | |||
Signature Page to Credit Agreement
| X.X. XXXXXX SECURITIES INC., Individually and as Lead Arranger and Joint Book-Runner |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Credit Agreement
| CITIGROUP GLOBAL MARKETS INC., Individually and as Syndication Agent, Lead Arranger and Joint Book-Runner |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
Signature Page to Credit Agreement
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX XXXXX, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: Wachovia Bank, National Association |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX CHASE, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: XXXXXX XXXXXXX BANK |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX CHASE, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: MIZUHO CORPORATE BANK, LTD. |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Deputy General Manager | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX XXXXX, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: XXXXXX COMMERCIAL PAPER INC. |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Authorized Signatory | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX XXXXX, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: General Electric Capital Corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Duly Authorized Signatory | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX CHASE, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: Farm Credit Services of Minnesota Valley, PCA Dba FCS Commercial Finance Group |
||||
| By: | /s/ Xxxxxx X. Best | |||
| Name: | Xxxxxx X. Best | |||
| Title: | Asst. Vice President | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX XXXXX, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: FARM CREDIT BANK of TEXAS |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX CHASE, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: City National Bank of New Jersey |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | EVP/CCO | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX XXXXX, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: CITIBANK, N.A. |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Vice President | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX CHASE, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: THE BANK OF NOVA SCOTIA |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX XXXXX, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: THE BANK OF NEW YORK |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX CHASE, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: AGFIRST FARM CREDIT BANK |
||||
| By: | /s/ Xxxxxx X. X’Xxxx | |||
| Name: | Xxxxxx X. X’Xxxx | |||
| Title: | Vice President | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
SIGNATURE PAGE TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXXXXX AMERICAN INC., XX XXXXXX XXXXX, N.A., AS ADMINISTRATIVE AGENT, CITIGROUP GLOBAL MARKETS INC., AS SYNDICATION AGENT AND EACH LENDER FROM TIME TO TIME PARTY HERETO NAME OF INSTITUTION: XXXXXXX SACHS CREDIT PARTNERS L.P.: |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
[Xxxxxxxx Fifth Amended and Restated Credit Agreement Signature Page]
ANNEX 1
LENDERS AND COMMITMENTS
| Lender | Revolving Loan Commitment | |||
JPMorgan Chase Bank, N.A. |
$ | 52,877,500 | ||
Citibank N.A. |
$ | 52,877,500 | ||
General Electric Capital Corporation |
$ | 52,000,000 | ||
Xxxxxx Commercial Paper Inc. |
$ | 52,000,000 | ||
Mizuho Corporate Bank, Ltd. |
$ | 52,000,000 | ||
Xxxxxx Xxxxxxx Bank |
$ | 52,000,000 | ||
AG First Farm Credit Bank |
$ | 52,000,000 | ||
The Bank of New York |
$ | 35,000,000 | ||
The Bank of Nova Scotia |
$ | 35,000,000 | ||
Xxxxxxx Sachs Bank USA |
$ | 35,000,000 | ||
Wachovia Bank, National Association |
$ | 35,000,000 | ||
Farm Credit Services of Minnesota
Valley, PCA DBA FCS Commercial
Finance Group |
$ | 20,000,000 | ||
City National Bank of New Jersey |
$ | 14,225,000 | ||
Farm Credit Bank of Texas |
$ | 10,000,000 | ||
Total: |
$ | 550,000,000 | ||
ANNEX II
LENDER ADDRESSES
| Lender | Address | |
JPMorgan Chase Bank, N.A.
|
000 Xxxx Xxxxxx, Xxxxx 0 | |
| Xxx Xxxx, XX 00000 | ||
| Attn: Xxxxxx X. Xxxxx | ||
| Tel: 000-000-00000 | ||
| Fax: 000-000-0000 | ||
| e-mail: xxxxxx.xxxxx@xxxxxxxx.xxx | ||
| with a copy to: | ||
| 000 Xxxx Xxxxxx, Xxxxx 00 | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: Xxxx Xxxxx | ||
| with a copy to: | ||
| 0000 Xxxxxx Xxxxxx, Xxxxx 00 | ||
| Xxxxxxx, XX 00000-0000 | ||
| Attn: Xxxxxxxx X. Anyingbo | ||
| Tel: 000-000-0000 | ||
| Fax: 000-000-0000 | ||
| e-mail: Xxxxxxxx.xxxxxxx@xxxxxxxx.xxx |
TABLE OF CONTENTS
SECTION 1. Amount and Terms of Credit |
1 | |||
1.01 Commitments |
1 | |||
1.02 Minimum Amount of Each Borrowing; Maximum Number of Borrowings |
3 | |||
1.03 Notice of Borrowing of Committed Loans |
3 | |||
1.04 Disbursement of Funds |
4 | |||
1.05 Notes; Register |
5 | |||
1.06 Conversions |
6 | |||
1.07 Pro Rata Borrowings |
6 | |||
1.08 Interest |
6 | |||
1.09 Interest Periods |
7 | |||
1.10 Increased Costs, Illegality, etc |
8 | |||
1.11 Compensation |
10 | |||
1.12 Change of Lending Office |
10 | |||
1.13 [RESERVED] |
11 | |||
1.14 Replacement of Lenders |
11 | |||
1.15 Notice of Certain Costs |
12 | |||
1.16 Incremental RL Commitments |
12 | |||
1.17 Maturity Date Extensions |
13 | |||
SECTION 2. Letters of Credit |
14 | |||
2.01 Letters of Credit |
14 | |||
2.02 Letter of Credit Requests |
15 | |||
2.03 Letter of Credit Participations |
15 | |||
2.04 Agreement to Repay Letter of Credit Drawings |
17 | |||
2.05 Increased Costs |
18 | |||
2.06 Indemnification; Nature of Letter of Credit Issuers’ Duties |
19 | |||
SECTION 3. Fees; Commitments |
20 | |||
3.01 Fees |
20 | |||
3.02 Voluntary Reduction of Revolving Loan Commitments |
21 | |||
3.03 Termination of Commitments |
21 | |||
SECTION 4. Payments |
22 | |||
4.01 Voluntary Prepayments |
22 | |||
4.02 Mandatory Prepayments |
22 | |||
4.03 Method and Place of Payment |
23 | |||
4.04 Net Payments |
23 | |||
SECTION 5. Conditions Precedent |
26 | |||
5.01 Conditions Precedent to the Fifth Restatement Effective Date |
26 | |||
5.02 Conditions Precedent to All Credit Events |
30 |
(i)
TABLE OF CONTENTS
SECTION 6. Representations, Warranties and Agreements |
30 | |||
6.01 Status
|
31 | |||
6.02 Power and Authority |
31 | |||
6.03 No Violation |
31 | |||
6.04 Litigation |
31 | |||
6.05 Use of Proceeds; Margin Regulations |
31 | |||
6.06 Governmental Approvals |
32 | |||
6.07 Investment Company Act |
32 | |||
6.08 True and Complete Disclosure |
32 | |||
6.09 Financial Condition; Financial Statements; Solvency |
33 | |||
6.10 Tax Returns and Payments |
33 | |||
6.11 Compliance with ERISA |
34 | |||
6.12 Subsidiaries |
34 | |||
6.13 Patents, etc |
34 | |||
6.14 Pollution and Other Regulations |
34 | |||
6.15 Properties |
34 | |||
SECTION 7. Affirmative Covenants |
35 | |||
7.01 Information Covenants |
35 | |||
7.02 Books, Records and Inspections |
36 | |||
7.03 Insurance |
37 | |||
7.04 Payment of Taxes |
37 | |||
7.05 Consolidated Corporate Franchises |
37 | |||
7.06 Compliance with Statutes, etc |
37 | |||
7.07 ERISA |
37 | |||
7.08 Good Repair |
38 | |||
7.09 End of Fiscal Years; Fiscal Quarters |
38 | |||
7.10 Subsidiary Guaranty; Collateral |
39 | |||
7.11 Margin Stock |
41 | |||
7.12 Ownership Structure |
41 | |||
7.13 Tax Sharing Agreement |
41 | |||
SECTION 8. Negative Covenants |
41 | |||
8.01 Changes in Business |
41 | |||
8.02 Consolidation, Merger, Sale of Assets, etc |
41 | |||
8.03 Liens |
44 | |||
8.04 Indebtedness |
47 | |||
8.05 Limitation on Dividends |
49 | |||
8.06 Transactions with Affiliates |
50 | |||
8.07 Consolidated Total Leverage Ratio |
51 | |||
8.08 Consolidated Interest Coverage Ratio |
51 | |||
8.09 Investments |
51 | |||
8.10 No Negative Pledge |
55 |
(ii)
TABLE OF CONTENTS
8.11 Modifications of Certain Agreements; Limitations on Voluntary Payments, etc |
55 | |||
8.12 Maintenance of Company Separateness |
56 | |||
8.13 Capital Expenditures |
56 | |||
SECTION 9. Events of Default |
57 | |||
9.01 Payments |
57 | |||
9.02 Representations, etc |
57 | |||
9.03 Covenants |
57 | |||
9.04 Default Under Other Agreements |
57 | |||
9.05 Bankruptcy, etc |
57 | |||
9.06 ERISA |
58 | |||
9.07 Guaranties |
58 | |||
9.08 Judgments |
59 | |||
9.09 Security Documents |
59 | |||
9.10 Change of Control |
59 | |||
SECTION 10. Definitions |
60 | |||
SECTION 11. The Lead Agents |
95 | |||
11.01 Appointment |
95 | |||
11.02 Delegation of Duties |
95 | |||
11.03 Exculpatory Provisions |
96 | |||
11.04 Reliance by Lead Agents |
96 | |||
11.05 Notice of Default |
97 | |||
11.06 Non-Reliance on Lead Agents and Other Lenders |
97 | |||
11.07 Indemnification |
97 | |||
11.08 Lead Agents in Their Individual Capacities |
98 | |||
11.09 Successor Lead Agents, etc |
98 | |||
11.10 Collateral Matters |
99 | |||
SECTION 12. Miscellaneous |
99 | |||
12.01 Payment of Expenses, etc |
99 | |||
12.02 Right of Setoff |
101 | |||
12.03 Notices |
101 | |||
12.04 Benefit of Agreement |
102 | |||
12.05 No Waiver; Remedies Cumulative |
105 | |||
12.06 Payments Pro Rata |
106 | |||
12.07 Calculations; Computations |
106 | |||
12.08 Governing Law; Submission to Jurisdiction; Venue |
107 | |||
12.09 Counterparts; Severability |
108 | |||
12.10 Execution |
108 | |||
12.11 Headings Descriptive |
109 | |||
12.12 Amendment or Waiver |
109 |
(iii)
TABLE OF CONTENTS
12.13 Survival |
110 | |||
12.14 Domicile of Loans |
110 | |||
12.15 Confidentiality |
110 | |||
12.16 Waiver of Jury Trial |
111 | |||
12.17 USA Patriot Act |
111 | |||
12.18 Interest Rate Limitation |
112 | |||
12.19 Post-Closing Actions |
112 | |||
12.20 Special Provisions Relating to Amendment and Restatement |
112 | |||
12.21 Termination of Certain Commitments Under the Fourth Amended and Restated Credit Agreement |
112 | |||
SECTION 13. Borrower Guaranty |
114 | |||
13.01 The Guaranty |
114 | |||
13.02 Bankruptcy |
114 | |||
13.03 Nature of Liability |
115 | |||
13.04 Independent Obligation |
115 | |||
13.05 Authorization |
115 | |||
13.06 Reliance |
116 | |||
13.07 Subordination |
116 | |||
13.08 Waiver |
116 | |||
13.09 Payments |
118 | |||
13.10 Termination of Certain Commitments |
116 |
ANNEX I
|
List of Lenders and Commitments | |
ANNEX II
|
Lender Addresses | |
ANNEX III
|
Existing Letters of Credit | |
ANNEX IV
|
Certain Litigation | |
ANNEX V
|
List of Subsidiaries | |
ANNEX VI
|
Existing Liens | |
ANNEX VII
|
Existing Debt | |
ANNEX VIII
|
Real Property | |
ANNEX IX
|
Existing Investments | |
ANNEX X
|
Post-Closing Matters | |
ANNEX XI
|
Designated Properties | |
ANNEX XII
|
Terminated Lenders | |
EXHIBIT A-1
|
Form of Revolving Note | |
EXHIBIT A-2
|
Form of Swingline Note | |
EXHIBIT B
|
Form of Letter of Credit Request | |
EXHIBIT C-1
|
Form of Opinion of Senior Vice President, Deputy General Counsel and Secretary | |
EXHIBIT C-2
|
Form of Opinion of Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC | |
EXHIBIT C-3
|
Form of Opinion of Xxxxxxxxxx Xxxxxxxx LLP |
(iv)
TABLE OF CONTENTS
EXHIBIT D
|
Form of Subsidiary Guaranty | |
EXHIBIT E
|
Form of Assignment Agreement | |
EXHIBIT F
|
Form of Solvency Certificate | |
EXHIBIT G
|
Form of Intercompany Subordination Agreement | |
EXHIBIT H
|
Form of Pledge Agreement | |
EXHIBIT I
|
Form of Security Agreement | |
EXHIBIT J
|
Form of Section 4.04(b)(ii) Certificate | |
EXHIBIT K
|
Form of Incremental RL Commitment Agreement |
(v)
