AMENDMENT NO. 2 To Second Amended and Restated Credit Agreement Dated as of November 27, 2006 Among SPIRIT AEROSYSTEMS, INC. (f/k/a MID-WESTERN AIRCRAFT SYSTEMS, INC.), a Delaware corporation, as Borrower, SPIRIT AEROSYSTEMS HOLDINGS, INC. (f/k/a...
Exhibit 10.1
Among
SPIRIT AEROSYSTEMS, INC.
(f/k/a MID-WESTERN AIRCRAFT SYSTEMS, INC.),
a Delaware corporation, as Borrower,
(f/k/a MID-WESTERN AIRCRAFT SYSTEMS, INC.),
a Delaware corporation, as Borrower,
SPIRIT AEROSYSTEMS HOLDINGS, INC.
(f/k/a MID-WESTERN AIRCRAFT SYSTEMS HOLDINGS, INC.),
a Delaware corporation, as Parent Guarantor,
(f/k/a MID-WESTERN AIRCRAFT SYSTEMS HOLDINGS, INC.),
a Delaware corporation, as Parent Guarantor,
Certain Subsidiaries Identified Therein,
as Guarantors,
as Guarantors,
The Lending Institutions Identified Therein,
BANK OF AMERICA, N.A.,
as Administrative Agent,
as Administrative Agent,
THE ROYAL BANK OF SCOTLAND PLC
and
THE BANK OF NOVA SCOTIA,
as Syndication Agents,
and
THE BANK OF NOVA SCOTIA,
as Syndication Agents,
and
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
and
BBVA COMPASS,
as Co-Documentation Agents
and
BBVA COMPASS,
as Co-Documentation Agents
ARRANGED BY:
BANK OF AMERICA SECURITIES LLC,
RBS SECURITIES INC.,
and
THE BANK OF NOVA SCOTIA,
as Joint Lead Arrangers and Joint Book Runners
for Amendment Xx. 0
RBS SECURITIES INC.,
and
THE BANK OF NOVA SCOTIA,
as Joint Lead Arrangers and Joint Book Runners
for Amendment Xx. 0
This Amendment No. 2, dated as of June 8, 2009 (this “Amendment”), to the Second Amended and
Restated Credit Agreement dated as of November 27, 2006 (as amended and modified, the “Credit
Agreement”) among SPIRIT AEROSYSTEMS, INC. (f/k/a MID-WESTERN AIRCRAFT SYSTEMS, INC.), a Delaware
corporation (the “Borrower”); SPIRIT AEROSYSTEMS HOLDINGS, INC. (f/k/a MID-WESTERN AIRCRAFT SYSTEMS
HOLDINGS, INC.), a Delaware corporation (the “Parent Guarantor”); the Guarantors party thereto;
BANK OF AMERICA, N.A., as successor Administrative Agent to CITICORP NORTH AMERICA, INC. (“CNAI”);
the lending institutions party thereto (the “Lenders”); CITIGROUP GLOBAL MARKETS INC., as Sole Lead
Arranger and Bookrunner; THE BANK OF NOVA SCOTIA and ROYAL BANK OF CANADA, as Co-Arrangers and as
Co-Syndication Agents; THE BANK OF NOVA SCOTIA, as Issuing Bank; and EXPORT DEVELOPMENT CANADA and
CAISSE DE DéPÔT ET PLACEMENT DU QUéBEC, as Co-Documentation Agents. Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders amend the Credit Agreement to effect the
changes described below;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as
follows:
Section 1. Amendments to the Credit Agreement
1.1 The definitions of “Administrative Agent”, “Alternate Base Rate”, “Applicable Rate”, “Base
Rate”, “Class”, “Collateral Agent”, “Commitment Fee Percentage”, “Eligible Assignee”, “Fee Letter”,
“Final Maturity Date”, “Interest Period”, “LIBO Rate”, “Revolving Credit Commitment”, “Revolving
Credit Commitment Period”, “Revolving Credit Maturity Date”, “Revolving Lender”, “Swingline Lender”
and “Test Period” set forth in Section 1.01 (Definitions) of the Credit Agreement are deleted in
their entirety and the following shall be substituted in lieu thereof:
“Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent appointed in accordance with
Section 8.01.
“Alternate Base Rate” means for any day, a rate per annum equal to the highest of (a)
the Administrative Agent’s Base Rate in effect on such day, (b) the Federal Funds Rate in effect on
such day plus 1/2 of 1%, and (c) the Daily Floating LIBO Rate in effect on such day plus 1.0%. Any
change in the Alternate Base Rate due to a change in the Base Rate, the Federal Funds Rate or the
Daily Floating LIBO Rate shall be effective as of the opening of business on the effective day of
such change in the Base Rate, the Federal Funds Rate or the Daily Floating LIBO Rate, respectively.
“Applicable Rate” means, for any day, (a) with respect to any Term B-1 Loan, the
applicable
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percentage set forth in the table below under the appropriate column:
| Eurodollar Spread | ABR Spread | |||||||
Term B-1 Loans |
1.75 | % | 0.75 | % | ||||
and (b) with respect to Revolving Loans, the Applicable Rate shall mean the applicable percentage
set forth in the table below under the appropriate caption:
| Revolving Loans | |||||||||||||||||||||
| Revolving Loans having a | Revolving Loans having a | ||||||||||||||||||||
| Revolving Credit Maturity Date of | Revolving Credit Maturity Date of | ||||||||||||||||||||
| June 30, 2010 | June 30, 2012 | ||||||||||||||||||||
| Total Leverage Ratio | Eurodollar Spread | ABR Spread | Eurodollar Spread | ABR Spread | |||||||||||||||||
Level I |
³2.5:1 | 2.75 | % | 1.75 | % | 4.00 | % | 3.00 | % | ||||||||||||
Level II |
<2.5:1 but ³1.75:1 | 2.50 | % | 1.50 | % | 3.50 | % | 2.50 | % | ||||||||||||
Level III |
<1.75:1 | 2.25 | % | 1.25 | % | 3.00 | % | 2.00 | % | ||||||||||||
For purposes of such calculation of the Applicable Rate with respect to Revolving Loans, the Total
Leverage Ratio shall be determined as of the end of each fiscal quarter of the Borrower’s fiscal
year based upon the Borrower’s consolidated financial statements delivered pursuant to Section
5.01(a) or (b). If at any time the Borrower has not submitted to the Administrative
Agent the applicable information as and when required under Section 5.01(a) or (b),
the Applicable Rate shall be the highest rate set forth in the table above until such time as the
Borrower has provided the information required under Section 5.01(a) or (b).
Within one (1) Business Day of receipt of the applicable information as and when required under
Section 5.01(a) or (b), the Administrative Agent shall give each Lender
telefacsimile or telephonic notice (promptly confirmed in writing) of the Applicable Rate in effect
from such date.
“Base Rate” means the rate of interest per annum in effect for such day as publicly
announced from time to time by the Administrative Agent as its “prime rate.” The “prime rate” is a
rate set by the Administrative Agent based upon various factors including the Administrative
Agent’s costs and desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by the Administrative Agent shall take effect at the
opening of business on the day specified in the public announcement of such change.
“Class” when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Term B-1 Loan or Swingline Loans, and
when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit
Commitment or Term B-1 Commitment, and when used in reference to any Lender, refers to whether such
Lender is a Revolving Lender or a Term B-1 Lender. For avoidance of doubt, it is understood and
agreed that the Non-Extending Revolving Lenders and the Extending Revolving Lenders are Revolving
Lenders and therefore are part of the same Class.
“Collateral Agent” means Bank of America in its capacity as collateral agent under any
of the Loan Documents or any successor collateral agent appointed in accordance with Section
8.01.
“Commitment Fee Percentage” means, for any day, (a) with respect to that portion of
any
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Revolving Lender’s Revolving Credit Commitment that terminates on June 30, 2010, 0.50%
per annum and (b) with respect to that portion of any Revolving Lender’s Revolving
Credit Commitment that terminates on June 30, 2012, 0.75% per annum.
“Eligible Assignee” shall mean (a) if the assignment does not include assignment of a
Revolving Credit Commitment, (i) any Lender, (ii) an Affiliate of any Lender, (iii) an Approved
Fund and (iv) any other person approved by the Administrative Agent and the Borrower (each such
approval not to be unreasonably withheld or delayed) and (b) if the assignment includes assignment
of a Revolving Credit Commitment, (i) any Revolving Lender, (ii) an Affiliate of any Revolving
Lender and (iii) an Approved Fund of a Revolving Lender, in each case approved by the Issuing Bank
(such approval not to be unreasonably withheld or delayed) and (iv) any other Person approved by
the Administrative Agent, the Issuing Bank, the Swingline Lender and the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that (x) no approval of the
Borrower shall be required during the continuance of an Event of Default and (y) “Eligible
Assignee” shall not include the Borrower or any of its Affiliates or Subsidiaries or any natural
person.
“Fee Letter” means the Administrative Agent’s Fee Letter, dated June 8, 2009, by and
among the Borrower, the Parent Guarantor and the Administrative Agent.
“Final Maturity Date” means the later of June 30, 2012 and the Term B-1 Loan Maturity
Date.
“Interest Period” means (a) as to any Eurodollar Borrowing, the period commencing on
the date of such Borrowing (including any date on which such Borrowing shall have been converted
from a Borrowing of a different Type) or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as the case may be, and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last day) in the
calendar month that is 1, 2, 3 or 6 months (or if available to all Lenders, 9 or 12 months)
thereafter, as the Borrower may elect; or (b) as to any ABR Borrowing (other than a Swingline
Borrowing), the period commencing on the date of such Borrowing (including any date on which such
Borrowing shall have been converted from a Borrowing of a different Type) or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case may be, and ending
on the earliest of (i) the next succeeding March 31, June 30, September 30 or December 31, (ii) (A)
June 30, 2010, in the case of Revolving Loans having a Revolving Credit Maturity Date of June 30,
2010, (B) June 30, 2012, in the case of Revolving Loans having a Revolving Credit Maturity Date of
June 30, 2012 and (C) the Term B-1 Loan Maturity Date, in the case of Term B-1 Loans, and (iii) the
date such Borrowing is prepaid in accordance with Section 2.05 or converted to a Eurodollar
Loan in accordance with Section 2.03 and (c) as to any Swingline Loan, a period commencing
on the date of such Loan and ending on the earliest of (i) the fifth Business Day thereafter, (ii)
June 30, 2012 and (iii) the date such Loan is prepaid in accordance with Section 2.05;
provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in
the case of a Eurodollar Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to but excluding the
last day of such Interest Period.
“LIBO Rate” means with respect to any Eurodollar Borrowing for any Interest Period,
the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.
If such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the rate per annum
determined
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by the Administrative Agent to be the rate at which Dollar deposits for delivery on the
first day of such Interest Period in immediately available funds in the approximate amount of the
Eurodollar Loan being made, continued or converted by the Administrative Agent and with a term
equivalent to such Interest Period would be offered by the Administrative Agent’s London Branch (or
other branch or Affiliate of the Administrative Agent) to major banks in the London or other
offshore interbank market for such currency at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period.
“Revolving Credit Commitment” means, with respect to each Revolving Lender, the
commitment of such Revolving Lender to make Revolving Loans and to acquire participations in
Letters of Credit and Swingline Loans hereunder (including without limitation by virtue of an
Increase Joinder), expressed in each case as an amount representing the maximum principal amount of
such Revolving Lender’s Revolving Credit Exposure hereunder, as the same may be reduced from time
to time pursuant to the provisions of this Agreement. The initial amount of each Revolving
Lender’s Revolving Credit Commitment is set forth on Schedule 2.01 (in the case of
Revolving Credit Commitments in effect on the Amendment No. 2 Effective Date), or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its Revolving Credit Commitment, as
applicable. The aggregate amount of the Revolving Lenders’ Revolving Credit Commitments as of the
Original Effective Date was $175.0 million and as of the Amendment Effective Date was $400.0
million, as of the Amendment No. 1 Effective Date was $650.0 million and as of the Amendment No. 2
Effective Date is $729.0 million.
“Revolving Credit Commitment Period” means the period from and including the first
Business Day after the Original Effective Date to but not including the applicable Revolving Credit
Maturity Date or any earlier date on which the Revolving Credit Commitments to make Revolving Loans
pursuant to Section 2.01 shall terminate as provided herein.
“Revolving Credit Maturity Date” means (a) for $729.0 million of the Revolving Credit
Commitments, June 30, 2010 and (b) for $408.8 million of the Revolving Credit Commitments, June 30,
2012.
“Revolving Lender” means a Lender with a commitment to make Revolving Loans or with
any Revolving Credit Exposure, in it capacity as such, including, for the avoidance of doubt,
Extending Revolving Lenders and Non-Extending Revolving Lenders, as applicable.
“Swingline Lender” means Bank of America, in its capacity as lender of Swingline
Loans.
“Test Period” means (i) for each covenant contained in Section 6.13, the four
consecutive complete Fiscal Quarters of the Borrower then last ended and (ii) for all other
provisions in this Agreement, the four consecutive complete Fiscal Quarters of the Borrower ended
as of the time indicated. Compliance with such covenants shall be tested, as of the end of each
Test Period, on the date on which the financial statements pursuant to Section 5.01(a) or
(b) have been, or should have been, delivered for the applicable fiscal period.
1.2 Section 1.01 (Definitions) of the Credit Agreement is amended to add the following defined
terms in their proper alphabetical order:
“Amendment No. 2” means that certain Amendment No. 2 to this Agreement dated as of the
Amendment No. 2 Effective Date.
“Amendment No. 2 Effective Date” means June 8, 2009.
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“Bank of America” means Bank of America, N.A.
“BAS” means Banc of America Securities LLC.
“BBA LIBOR” has the meaning set forth in the definition of LIBO Rate in Section
1.01.
“Daily Floating LIBO Rate” means, for any day, the interest rate per annum equal to
(a) BBA LIBOR, at approximately 11:00 a.m., London time two Business Days prior to the date of
determination (provided that if such day is not a business day in London, the next preceding
business day in London) for Dollar deposits being delivered in the London interbank market for a
term of one month commencing on the date of determination or (b) if such published rate is not
available at such time for any reason, the rate determined by the Administrative Agent to be the
rate at which deposits in Dollars for delivery on the date of determination in same day funds in
the approximate amount of the Base Rate Loan being made, continued or converted by the
Administrative Agent and with a term equal to one month would be offered by the Administrative
Agent’s London Branch to major banks in the London interbank Eurodollar market at their request at
the date and time of determination.
“Extending Revolving Lenders” means those Revolving Lenders agreeing to extend all or
any portion of their Revolving Credit Commitment to June 30, 2012 pursuant to Amendment No. 2, and
any of their successors and permitted assigns of such Revolving Credit Commitment in accordance
with Section 10.04.
“Interest Coverage Ratio” means, at any date, the ratio of (a) Consolidated EBITDA for
the Test Period most recently ended to (b) Consolidated Interest Expense for the Test Period most
recently ended.
“Non-Extending Revolving Lenders” means those Revolving Lenders whose entire Revolving
Credit Commitment terminates on June 30, 2010.
1.3 The last sentence of Section 2.03(a) (Conversion and Continuation Options for Loans) is
amended and restated in its entirety to read as follows:
All of any part of the outstanding Eurodollar Loans or ABR Loans may be converted as
provided herein; provided that (i) no Loan may be converted into a Eurodollar Loan
when any Default or Event of Default has occurred and is continuing and (ii) no Loan may be
converted into a Eurodollar Loan after the date that is one month prior to the applicable
Revolving Credit Maturity Date or the Term B-1 Loan Maturity Date, as applicable.
1.4 The first proviso in Section 2.03(b) (Conversion and Continuation Options for Loans) is
amended and restated in its entirety to read as follows:
provided that no Eurodollar Loan may be continued as such (i) when any Default or
Event of Default has occurred and continuing and (ii) after the date that is one month prior
to the applicable Revolving Credit Maturity Date or the Term B-1 Loan Maturity Date, as
applicable; and
1.5 The first and second sentences in Section 2.04 (Swingline Loans) are amended and restated
in their entirety to read as follows:
(a) Subject to the terms and conditions hereof, the Swingline Lender may, in its sole
discretion and in reliance upon the commitments of the other Lenders set forth herein, make
swingline loans (individually, a “Swingline Loan” and collectively, the “Swingline Loans”)
to the Borrower from
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time to time during the Revolving Credit Commitment Period in
accordance with the procedures set forth in this Section 2.04, provided that
(i) the aggregate principal amount of all Swingline Loans shall not exceed $20.0 million
(the “Swingline Sublimit”) at any one time outstanding, (ii) the principal amount of
any borrowing of any Swingline Loans may not exceed the aggregate amount of the Available
Revolving Credit Commitments of all Revolving Lenders immediately prior to such borrowing or
result in the Aggregate Revolving Credit Exposure then outstanding exceeding the Total
Revolving Credit Commitments then in effect, and (iii) in no event may Swingline Loans be
borrowed hereunder if (A)(x) a Default or Event of Default or Event of Termination shall
have occurred and be continuing and (y) such Default or Event of Default or Event of
Termination shall not have been subsequently cured or waived. Amounts borrowed under this
Section 2.04 may be repaid and, up to but excluding June 30, 2012, reborrowed.
1.6 Section 2.06(c) (Letters of Credit) is amended and restated in its entirety to read as
follows:
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the issuance of
such Letter of Credit (or, in the case of any renewal or extension thereof, one year after
such renewal or extension) and (ii) June 25, 2012.
1.7 Section 2.06(d) (Letters of Credit) is amended to add the following sentence at the end
thereof:
It is understood and agreed that with respect to any Letters of Credit having an expiry date
later than June 23, 2010, only the Extending Revolving Lenders shall have a participation
interest in such Letters of Credit (each such participation interest to be based on such
Extending Revolving Lender’s Commitment Percentage of only those aggregate Revolving Credit
Commitments with a Revolving Credit Maturity Date of June 30, 2012).
1.8 Section 2.06(e) (Reimbursement) is amended to add the following sentence at the end
thereof:
It is understood and agreed that with respect to any LC Disbursement in respect of any
Letter of Credit having an expiry date later than June 23, 2010, only the Extending
Revolving Lenders shall have a reimbursement obligation with respect to such Letter of
Credit (each such reimbursement obligation to be based on such Extending Revolving Lender’s
Commitment Percentage of only those aggregate Revolving Credit Commitments with a Revolving
Credit Maturity Date of June 30, 2012).
1.9 Section 2.07(a)(i) (Repayments of Loans; Evidence of Debt) is amended and restated in its
entirety to read as follows:
(a)(i) The Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of the relevant Lenders in respect of Revolving Credit Borrowings, (A) on
June 30, 2010 (or such earlier date as, and to the extent that, such Revolving Loan becomes
due and payable pursuant to Section 2.05 or Article VII), the unpaid
principal amount of each Revolving Loan having a Revolving Credit Maturity Date of June 30,
2010 and that portion of each Swingline Loan outstanding participated in by a Non-Extending
Lender pursuant to Section 2.04(c) and (B) on June 30, 2012 (or such earlier date as, and to
the extent that, such Revolving Loan becomes due and payable pursuant to Section 2.05 or
Article VII), the unpaid principal
amount of each Revolving Loan having a Revolving Credit Maturity Date of June 30, 2012 and
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each Swingline Loan made to it by each such Lender and
1.10 Section 2.08(d) (Interest Rates and Payment Dates) is amended and restated in its
entirety to read as follows:
Interest shall be payable in arrears on each Interest Payment Date and on the Term B-1
Loan Maturity Date (in the case of Term B-1 Loans) and the applicable Revolving Credit
Maturity Date (in the case of Revolving Loans); provided, that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the
event of any repayment or prepayment of any Loan, accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective date of
such conversion. Interest in respect of each Loan shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.
1.11 Section 2.10(b) (Fees) is amended to delete the reference to “0.125%” in the first
sentence thereof and replace it with “0.25%”.
1.12 Section 2.11(a) (Termination, Reduction or Adjustment of Commitments) is amended and
restated in its entirety to read as follows:
(a) Unless previously terminated, (i) the Term B-1 Commitments shall terminate at 5:00
pm., New York City time, on the Amendment Effective Date, (ii) the applicable Revolving
Credit Commitments shall terminate on the applicable Revolving Credit Maturity Date.
1.13 Section 2.13(a) (Pro Rata Treatment and Payments) is amended to read as follows:
(a) Each reduction of the Revolving Credit Commitments of the Revolving Lenders shall
be made pro rata according to the amounts of such Revolving Lenders’ Commitment Percentages.
Each payment (including each prepayment) by the Borrower on account of principal of and
interest on Loans which are ABR Loans shall be made pro rata according to
the respective outstanding principal amounts of such ABR Loans then held by the Lenders of
the applicable Class, with adjustments, as necessary and appropriate, to reflect the
different interest rates payable with respect to Revolving Loans depending on the Revolving
Credit Maturity Date of such Revolving Loans and payment of principal to Non-Extending
Lenders on the applicable Revolving Credit Maturity Date. Subject to Section
2.05(f), each payment (including each prepayment) by the Borrower on account of
principal of and interest on Loans which are Eurodollar Loans designated by the Borrower to
be applied to a particular Eurodollar Borrowing shall be made pro rata
according to the respective outstanding principal amounts of such Loans then held by the
Lenders of the applicable Class, with adjustments, as necessary and appropriate, to reflect
the different interest rates payable with respect to Revolving Loans depending on the
Revolving Credit Maturity Date of such Revolving Loans and payment of principal to
Non-Extending Lenders on their Revolving Credit Maturity Date. Subject to Section
2.05(f), each payment (including each prepayment) by the Borrower on account of
principal of and interest on Swingline Loans shall be made pro rata according to the
respective outstanding principal amounts of the Swingline Loans or participating interests
therein, as the case may be, then held by the relevant Lenders. All payments (including
prepayments) to be made by the Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made
prior to 10:00 a.m., New York time, on the due date
thereof to the Administrative Agent, for the account of the Lenders of the applicable Class,
at the
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Administrative Agent’s New York office specified in Section 10.01 in the
currency in which the applicable obligation is denominated and in immediately available
funds. The Administrative Agent shall distribute such payments to the Lenders entitled
thereto in the same currency as received and promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on Eurodollar Loans) becomes due
and payable on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day (and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate during such
extension) unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately preceding
Business Day. For the avoidance of doubt, nothing in this Section 2.13(a) shall prohibit
the Borrower from paying, on June 30, 2010, the unpaid principal amount of each Revolving
Loan having a Revolving Credit Maturity Date of June 30, 2010 in accordance with the terms
of Section 2.07.
1.14 The first sentence of Section 2.21(a) is amended and restated in its entirety to read as
follows:
The Borrower may by written notice to the Administrative Agent elect to request prior to
June 30, 2012, an increase to the existing Revolving Credit Commitment by an amount not in
excess of $75,000,000 in the aggregate.
1.15 Section 6.13 (Covenant Leverage Ratio) is amended and restated in its entirety to read as
follows:
6.13 Financial Covenants.
(a) The Borrower will not permit the Covenant Leverage Ratio as of the last day of any Fiscal
Quarter to exceed 2.5:1.0.
(b) The Borrower will not permit the Interest Coverage Ratio as of the last day of any Fiscal
Quarter to be less than 4.0:1.0.
1.16 The sixth paragraph of Section 8.01 (The Agents) is amended and restated to read as
follows:
The Administrative Agent may at any time give notice of its resignation to the Lenders, the
Issuing Bank and the Borrower. Upon receipt of any such notice of resignation, the Requisite
Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which
shall be a bank with an office in New York, New York, having combined capital and surplus of at
least $500 million, or an Affiliate of any such bank with an office in the United States. If no
such successor shall have been so appointed by the Requisite Lenders and shall have accepted such
appointment within sixty (60) days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents
(except that in the case of any collateral security held by the Administrative Agent on behalf
of the
9
Lenders or the Issuing Bank under any of the Loan Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such time as a successor Administrative
Agent is appointed) and (2) all payments, communications and determinations provided to be made by,
to or through the Administrative Agent shall instead be made by or to each Lender and the Issuing
Bank directly, until such time as the Requisite Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). After the retiring Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article VIII shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was
acting as Administrative Agent. Any resignation by Bank of America as Administrative Agent
pursuant to this Section shall also constitute its resignation as Swingline Lender and, if Bank of
America is then an Issuing Bank, Bank of America in its capacity as Issuing Bank. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
Swingline Lender and, if Bank of America is then an Issuing Bank, Bank of America in its capacity
as Issuing Bank, (b) the retiring Swingline Lender and, if Bank of America is then an Issuing Bank,
Bank of America in its capacity as Issuing Bank, shall be discharged from all of their respective
duties and obligations hereunder or under the other Loan Documents, and (c) if Bank of America is
then an Issuing Bank, the successor Issuing Bank shall issue letters of credit in substitution for
the Letters of Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the
retiring Issuing Bank with respect to such Letters of Credit.
1.17 Section 10.01(a) (Notices) is amended by amending and restating clauses (i) through (iv)
in their entirety to read as follows:
(i) if to the Borrower, to it at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000,
Attention: Xxxx X. Xxxxxxxx, with a copy to Xxxxxxxx X. Xxxxxx, Xxxxxxxxx & Xxxxxxxx L.L.P.,
0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000; Direct: (000) 000-0000; Fax: (000)
000-0000; Email: xxxxxxx@xxxxxxxxx.xxx;
(ii) if to the Administrative Agent or the Collateral Agent, to it at 0000 Xxxxxx
Xxxxxx, 0xx Xxxxx, Mail Code CA5-701-05-19, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxx
Xxxxxxxxxxx; Direct: (000) 000-0000; Fax: (000) 000-0000; Email:
xxxxxx.x.xxxxxxxxxxx@xxxxxxxxxxxxx.xxx;
(iii) [Reserved];
(iv) if to the Issuing Bank, to it at The Bank of Nova Scotia, Xxx Xxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx XxXxxxxx, Direct: (000) 000-0000, Fax: (212) 000-
0000; Email: xxxxx_xxxxxxxx@xxxxxxxxxxxxx.xxx;
1.18 Section 10.05(a) (Expenses; Indemnity) is amended and restated in its entirety to read as
follows:
(a) The Borrower agrees to pay (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent, the Collateral Agent and CGMI, including the reasonable fees,
charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent and
10
the Arrangers, and local counsel, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this Agreement and the
other Loan Documents or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby contemplated shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by BAS, including
reasonable fees, charges and disbursements of Xxxxx & Xxx Xxxxx, PLLC, as counsel for BAS,
RBS Securities Inc. and The Bank of Nova Scotia, in connection with preparation of Amendment
No. 2 and the extension and syndication of the credit facilities in connection therewith
(whether or not the transactions thereby contemplated shall be consummated), (iii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iv) all reasonable out-of-pocket expenses incurred by the Lead Arranger, the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender in connection
with the enforcement or protection of its rights in connection with this Agreement
(including its rights under this Section), the other Loan Documents or the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit, and, in connection with any such enforcement or protection, the fees, charges and
disbursements of any other counsel for the Administrative Agent, the Collateral Agent, the
Lead Arranger, the Issuing Bank or any Lender; provided, however, that the
Borrower shall not be obligated to pay for expenses incurred by a Lender in connection with
the assignment of Loans to an assignee Lender (except pursuant to Section 2.20) or
the sale of Loans to a Participant pursuant to Section 10.04.
1.19 Section 10.19 of the Credit Agreement is amended to read as follows (with a conforming
change to the table of contents of the Credit Agreement):
10.19 No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document),
the Borrower and each other Loan Party acknowledges and agrees that: (i) (A) the arranging and
other services regarding this Agreement provided by the Administrative Agent, BAS, RBS Securities
Inc. and The Bank of Nova Scotia in their capacities as arrangers (for purposes of this Section
10.19, collectively the “Arrangers”) are arm’s-length commercial transactions between
the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the
Administrative Agent and the Arrangers, on the other hand, (B) each of the Borrower and the other
Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it
has deemed appropriate, and (C) the Borrower and each other Loan Party is capable of evaluating,
and understands and accepts, the terms, risks and conditions of the transactions contemplated
hereby and by the other Loan Documents; (ii) (A) the Administrative Agent and the Arrangers each is
and has been acting solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary
for the Borrower, any other Loan Party or any of their respective Affiliates, or any other Person
and (B) neither the Administrative Agent nor any of the Arrangers has any obligation to the
Borrower, any other Loan Party or any of their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) the Administrative Agent and the Arrangers and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Borrower, the other Loan Parties and their respective Affiliates, and neither the
Administrative Agent nor any of the Arrangers has any obligation to disclose any of such interests
to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent
permitted by law, each of the Borrower and the other Loan
Parties hereby waives and releases any claims that it may have against the Administrative
Agent or any of
11
the Arrangers with respect to any breach or alleged breach of agency or fiduciary
duty in connection with any aspect of any transaction contemplated hereby.
1.20 The Revolving Credit Commitments of each Revolving Lender set forth on Schedule 2.01 of
the Credit Agreement are hereby amended and restated to read as set forth on Schedule 1
attached hereto, and Schedule 2.01 of the Credit Agreement shall be deemed amended to reflect such
revised Revolving Credit Commitments.
1.21 The table set forth in Exhibit C of the Credit Agreement (Form of Assignment and
Assumption) is hereby amended and restated in its entirety to read as set forth on Exhibit
A attached hereto, and Exhibit C of the Credit Agreement shall be deemed amended to reflect
such table.
Section 2. Increase in Revolving Commitments
(a) Subject to and upon the terms and conditions herein, each Person with an Additional
Revolving Credit Commitment (as defined below) on the Amendment No. 2 Effective Date who executes
and delivers this Amendment (an “Additional Revolving Lender”) shall become an Extending Revolving
Lender under the Credit Agreement with respect to its Additional Revolving Credit Commitment and
shall have a Revolving Credit Commitment under the Credit Agreement in the amount of its Additional
Revolving Credit Commitment in addition to any Revolving Credit Commitment it has prior to the
Amendment No. 2 Effective Date. With respect to each Additional Revolving Lender, the commitment of
such Additional Revolving Lender to make Revolving Loans and to acquire participations in Letters
of Credit and Swingline Loans under the Credit Agreement, shall be in an amount set forth on
Schedule 2 to this Amendment (the “Additional Revolving Credit Commitment”). The aggregate
amount of the Additional Revolving Credit Commitments shall equal $79.0 million. The Additional
Revolving Credit Commitments and Revolving Loans thereunder established pursuant to this Section
shall constitute Revolving Loans and Revolving Credit Commitments under, and shall be entitled to
all the benefits afforded by, the Credit Agreement and the other Loan Documents, and shall, without
limiting the foregoing, benefit equally and ratably from the Guarantees and security interests
created by the Security Documents.
(b) On the Amendment No. 2 Effective Date, the Borrower shall repay all outstanding Revolving
Loans out of the proceeds of a new borrowing of Revolving Loans under the Credit Agreement and each
of the Revolving Lenders having a Revolving Credit Commitment prior to the Amendment No. 2
Effective Date (the “Pre-Amendment Revolving Lenders”) shall assign to each Additional Revolving
Lender, and each Additional Revolving Lender shall purchase from each Pre-Amendment Revolving
Lender, at the principal amount thereof, such participation interests in LC Exposure and Swingline
Loans outstanding on the Amendment No. 2 Effective Date as shall be necessary in order that, after
giving effect to all such repayments and reborrowings and assignments and purchases, such Revolving
Loans and participation interests in LC Exposure and Swingline Loans will be held by Pre-Amendment
Revolving Lenders and Additional Revolving Lenders ratably in accordance with their Revolving
Credit Commitments after giving effect to the Additional Revolving Credit Commitments.
Section 3. Conditions Precedent to the Effectiveness of this Amendment.
This Amendment shall become effective as of the date first written above when, and only when,
each of the following conditions precedent shall have been satisfied or waived (the “Amendment No.
2 Effective Date”) by the Administrative Agent:
3.1 Executed Counterparts. The Administrative Agent shall have received this Amendment, duly
executed by the Borrower, the Parent Guarantor, the Subsidiary Guarantors, the Administrative
12
Agent, the Requisite Lenders, each Revolving Lender agreeing to extend its Revolving Credit
Commitment to June 30, 2012 pursuant to the terms hereof and each Additional Revolving Lender with
an Additional Revolving Credit Commitment;
3.2 Interest. The Borrower shall have paid all accrued and unpaid interest on the outstanding
Revolving Loans of any Revolving Lender to the extent necessary as a result of the reduced
Commitment Percentage of such Revolving Lender on the Amendment No. 2 Effective Date, in each case
to, but not including, the Amendment No. 2 Effective Date;
3.3 Corporate and Other Proceedings. All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions contemplated by this
Amendment shall be reasonably satisfactory in all respects to the Administrative Agent;
3.4 No Default or Event of Default. After giving effect to this Amendment, no Default or
Event of Default shall have occurred and be continuing;
3.5 Fees and Expenses. The Borrower shall have delivered, by wire transfer of immediately
available funds, (a) to Banc of America Securities LLC (“BAS”) (i) for the account of each Lender
consenting to this Amendment, an amendment fee in an amount equal to 0.25% of the aggregate
principal amount of the Commitments held by such consenting Lenders, which fee shall be earned and
payable on the Amendment No. 2 Effective Date and (ii) for the account of each Extending Revolving
Lender, an extension fee in an amount as agreed and owing to such Extending Revolving Lenders,
which fee shall be earned and payable on the Amendment No. 2 Effective Date, (b) to BAS and Bank of
America, payment for all reasonable out-of-pocket fees and expenses (including reasonable fees and
expenses of Xxxxx & Xxx Xxxxx, PLLC) invoiced prior to the Amendment No. 2. Effective Date and due
pursuant to Section 5, (c) to CNAI, all reasonable out-of-pocket fees and expenses
(including reasonable fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP) invoiced prior to the
Amendment No. 2 Effective Date, and (d) to each respective party, any other fees owing to BAS, RBS
Securities Inc. and The Bank of Nova Scotia, in their capacities as joint lead arrangers
(collectively, the “Joint Lead Arrangers”) or Bank of America, in its capacity as Administrative
Agent.
3.6 Opinions of Counsel. The Administrative Agent shall have received (i) a legal opinion, in
form and substance reasonably satisfactory to the Administrative Agent, from Fulbright & Xxxxxxxx
L.L.P., counsel to the Borrower, and (ii) such other opinions of counsel to the Borrower as may be
reasonably requested by the Administrative Agent or its counsel.
3.7 Mortgages. (i) With respect to each Mortgage encumbering Mortgaged Property, an amendment
thereof (each a “Mortgage Amendment”) duly executed and acknowledged by the applicable Loan Party,
and in form for recording in the recording office where each such Mortgage was recorded, together
with such certificates, affidavits, questionnaires or returns as shall be required in connection
with the recording or filing thereof under applicable law, in each case in form and substance
reasonably satisfactory to the Collateral Agent.
(ii) With respect to each Mortgage Amendment, a copy of the existing mortgage title insurance
policy and an endorsement with respect thereto (collectively, the “Mortgage Policy”) relating to
the Mortgage encumbering such Mortgaged Property assuring the Collateral Agent that the Mortgage,
as amended by the Mortgage Amendment, is a valid and enforceable first priority lien on such
Mortgaged Property in favor of the Collateral Agent for the benefit of the Secured Parties free and
clear of all defects and encumbrances and liens except as expressly permitted by Section 6.02 of
the Credit Agreement or by the Collateral Agent, and such Mortgage Policy shall otherwise be in form and substance
reasonably satisfactory to the Collateral Agent.
13
(iii) With respect to each Mortgage Amendment, opinions of local counsel to the Loan Parties,
which opinions (a) shall be addressed to each Agent and each of the Lenders and be dated the
Amendment No. 2 Effective Date, (b) shall cover the enforceability of the respective Mortgage as
amended by the Mortgage Amendment and such other matters incident to the transactions contemplated
herein as the Agents may reasonably request and (c) shall be in form and substance reasonably
satisfactory to the Agents.
Section 4. Representations and Warranties
On and as of the Amendment No. 2 Effective Date, after giving effect to this Amendment, the
Borrower hereby represents and warrants to the Administrative Agent and each Lender as follows:
4.1 this Amendment has been duly authorized, executed and delivered by the Borrower and each
Guarantor and constitutes the legal, valid and binding obligations of the Borrower and each
Guarantor enforceable against the Borrower and each Guarantor in accordance with its terms and
constitutes the legal, valid and binding obligation of the Borrower and each Guarantor enforceable
against the Borrower and each Guarantor in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights
generally;
4.2 each of the representations and warranties contained in Article III of the Credit
Agreement and in each other Loan Document is true and correct in all material respects (except that
any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect”
shall be true and correct in all respects) with the same effect as if then made (unless expressly
stated to relate to an earlier date, in which case such representations and warranties shall be
true and correct in all material respects (except that any representation or warranty that is
qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all
respects) as of such earlier date);
4.3 no Default or Event of Default has occurred and is continuing; and
4.4 after giving effect to this Amendment, neither the modification of the Credit Agreement
affected pursuant to this Amendment nor the execution, delivery, performance or effectiveness of
this Amendment (a) impairs the validity, effectiveness or priority of the Liens granted pursuant to
any Loan Document, and such Liens continue unimpaired with the same priority to secure repayment of
all Obligations, whether heretofore or hereafter incurred; or (b) requires that any new filings be
made or other action taken to perfect or to maintain the perfection of such Liens, other than the
Mortgage Amendments.
Section 5. Fees and Expenses
The Borrower agrees to pay promptly (and in any event on the Amendment No. 2 Effective Date)
after presentation of an invoice therefor all reasonable out-of-pocket fees and expenses of the
Joint Lead Arrangers (including the reasonable fees and out-of-pocket expenses of Xxxxx & Xxx
Xxxxx, PLLC, as counsel to the Joint Lead Arrangers) in connection with the preparation,
negotiation, execution and delivery of this Amendment.
Section 6. Reference to the Effect on the Loan Documents
6.1 As of the Amendment No. 2 Effective Date, each reference in the Credit Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the
other Loan Documents to the Credit Agreement (including, without limitation, by means of words like
14
“thereunder”, “thereof’ and words of like import), shall mean and be a reference to the Credit
Agreement, as amended hereby, and this Amendment and the Credit Agreement shall be read together
and construed as a single instrument. Each of the table of contents and lists of Exhibits and
Schedules of the Credit Agreement shall be amended to reflect the changes made in this Amendment as
of the Amendment No. 2 Effective Date.
6.2 Except as expressly amended hereby or specifically waived above, all of the terms and
provisions of the Credit Agreement and all other Loan Documents are and shall remain in full force
and effect and are hereby ratified and confirmed.
6.3 The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Lenders, the Borrower,
Lead Arranger or the Administrative Agent under any of the Loan Documents, nor constitute a waiver
or amendment of any other provision of any of the Loan Documents or for any purpose except as
expressly set forth herein.
6.4 This Amendment is a Loan Document.
Section 7. Execution in Counterparts
This Amendment may be executed by the parties hereto in several counterparts (including by
facsimile), each of which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
Section 8. Governing Law
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 9. Headings
The various headings of this Amendment are inserted for convenience only and shall not affect
the meaning or interpretation of this Amendment or any provisions hereof.
Section 10. Notices
All communications and notices hereunder shall be given as provided in the Credit Agreement.
Section 11. Severability
The fact that any term or provision of this Amendment is held invalid, illegal or
unenforceable as to any person in any situation in any jurisdiction shall not affect the validity,
enforceability or legality of the remaining terms or provisions hereof or the validity,
enforceability or legality of such offending term or provision in any other situation or
jurisdiction or as applied to any person.
Section 12. Successors
The terms of this Amendment shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and assigns.
15
Section 13. Cross-References
References in this Amendment to any Section are, unless otherwise specified or otherwise
required by the context, to such Section of this Amendment.
Section 14. Affirmations
14.1 Each Loan Party signatory hereto hereby (a) ratifies and affirms its obligations under
the Loan Documents (including guarantees and security agreements) executed by the undersigned and
(b) acknowledges, renews and extends its continued liability under all such Loan Documents and
agrees such Loan Documents remain in full force and effect, in each case, as modified by this
Amendment.
14.2 Each Loan Party signatory hereto hereby reaffirms, as of the Amendment No. 2 Effective
Date, (a) the covenants and agreements contained in each Loan Document to which it is a party,
including, in each case, such covenants and agreements as in effect immediately after giving effect
to this Amendment and the transactions contemplated thereby, and (b) its guarantee of payment of
the Obligations (including, without limitation, all Obligations related to the Additional Revolving
Credit Commitments) pursuant to the Guarantee and the Lien on the Collateral securing payment of
the Obligations (including, without limitation, all Obligations relating to the Additional
Revolving Credit Commitments) pursuant to the Security Documents.
14.3 Each Loan Party signatory hereto hereby certifies that, as of the date hereof (both
before and after giving effect to the occurrence of the Amendment No. 2 Effective Date), the
representations and warranties made by it contained in the Loan Documents to which it is a party
are true and correct in all material respects (except that any representation or warranty that is
qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all
respects) with the same effect as if then made (unless expressly stated to relate to an earlier
date, in which case such representations and warranties shall be true and correct in all material
respects (except that any representation or warranty that is qualified as to “materiality” or
“Material Adverse Effect” shall be true and correct in all respects) as of such earlier date).
14.4 Each Loan Party signatory hereto hereby acknowledges and agrees that the acceptance by
the Administrative Agent, each Lender and each other Agent of this document shall not be construed
in any manner to establish any course of dealing on any Agent’s or Lender’s part, including the
providing of any notice or the requesting of any acknowledgment not otherwise expressly provided
for in any Loan Document with respect to any future amendment, waiver, supplement or other
modification to any Loan Document or any arrangement contemplated by any Loan Document.
14.5 Each Loan Party signatory hereto hereby represents and warrants that, immediately after
giving effect to this Amendment, each Loan Document, in each case as modified by this Amendment
(where applicable), to which it is a party continues to be a legal, valid and binding obligation of
the undersigned, enforceable against such party in accordance with its terms (except, in any case,
as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally and by principles of equity).
Section 15. Successor Administrative Agent and Collateral Agent
15.1 Effective as of the Amendment No. 2 Effective Date, CNAI has resigned as Administrative
Agent and Collateral Agent under the Loan Documents pursuant to that certain Successor Agent
Agreement among CNAI, Bank of America and the Borrower dated as of the date hereof, and Bank
16
of America has agreed to be appointed as successor Administrative Agent and Collateral Agent under the
Loan Documents, in each case in accordance with Section 8.01 of the Credit Agreement.
15.2 Each of the parties hereto hereby (a) acknowledges the resignation of CNAI as
Administrative Agent and Collateral Agent under the Loan Documents, (b) waives any requirement
under the Credit Agreement (including, without limitation, Section 8.01 of the Credit Agreement)
that CNAI must provide prior written notice prior to its resignation as Administrative Agent or
Collateral Agent and (c) agrees that CNAI’s resignation is effective as of the Amendment No. 2
Effective Date. In furtherance of the foregoing, all references to CNAI in its capacity as the
Administrative Agent or Collateral Agent in the Credit Agreement and the other Loan Documents are
hereby amended to reference Bank of America as the Administrative Agent and Collateral Agent
thereunder.
15.3 Effective as of the Amendment No. 2 Effective Date, each of the undersigned Lenders
hereby (a) appoints Bank of America as successor Administrative Agent and Collateral Agent under
the Loan Documents, and (b) acknowledges and agrees that Bank of America, in its capacity as
successor Administrative Agent and Collateral Agent under the Loan Documents, is the beneficiary of
Section 8.01 of the Credit Agreement and all other indemnification and exculpatory provisions of
the Loan Documents applicable to the Administrative Agent and the Collateral Agent;
provided, that under no circumstances does Bank of America assume, nor shall Bank of
America be deemed to assume or be responsible for any obligations of the Administrative Agent or
Collateral Agent under or pursuant to any Loan Document arising prior to the Amendment No. 2
Effective Date.
Notwithstanding the foregoing, it is understood and agreed that (i) the provisions of Article VIII
and Section 10.05 of the Credit Agreement (as in effect prior to the Amendment No. 2 Effective
Date) shall continue in effect for the benefit of CNAI in respect of any action taken or omitted to
be taken by it while it was acting as Administrative Agent or Collateral Agent under the Credit
Agreement and (ii) CNAI shall be an express third party beneficiary of this Section 15 of the
Amendment.
[SIGNATURE PAGES FOLLOW]
17
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers and general partners thereunto duly authorized, as of the date first written
above.
| SPIRIT AEROSYSTEMS, INC. | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxx
|
|||||
| Title: | Vice President of Tax | |||||
| SPIRIT AEROSYSTEMS HOLDINGS, INC. | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxx
|
|||||
| Title: | Vice President of Tax | |||||
| SPIRIT AEROSYSTEMS INTERNATIONAL HOLDINGS, INC. |
||||||
| By: Name: |
/s/ Xxxxxx Xxxxx
|
|||||
| Title: | Vice President of Tax | |||||
| SPIRIT AEROSYSTEMS FINANCE, INC. | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| SPIRIT AEROSYSTEMS INVESTCO, LLC | ||||||
| By: Name: |
/s/ Xxxxxx X. Xxxxx
|
|||||
| Title: | Assistant Secretary | |||||
| SPIRIT AEROSYSTEMS NORTH CAROLINA, INC. | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxx
|
|||||
| Title: | President | |||||
| SPIRIT AEROSYSTEMS OPERATIONS INTERNATIONAL, INC. |
||||||
| By: Name: |
/s/ Xxxxxx Xxxxx
|
|||||
| Title: | President | |||||
AMENDMENT NO. 2
SPIRIT AEROSYSTEMS, INC.
SPIRIT AEROSYSTEMS, INC.
| Bank of America, N.A., | ||||||
| As Administrative Agent and Collateral Agent | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxxxxxx
|
|||||
| Title: | Vice President | |||||
AMENDMENT NO. 2
SPIRIT AEROSYSTEMS, INC.
SPIRIT AEROSYSTEMS, INC.
| |
, |
| By: Name: |
|
|||||
| Title: |
AMENDMENT NO. 2
SPIRIT AEROSYSTEMS, INC.
SPIRIT AEROSYSTEMS, INC.
SCHEDULE 1
Revolving Credit Commitments
| Revolving Credit | Revolving Credit | |||||||||||||||||||
| Commitments through | Commitment | Commitments through | Commitment | Total Commitment | ||||||||||||||||
| Lenders | June 30, 2010 | Percentage | June 30, 0000 | Xxxxxxxxxx | Xxxxxxxxxx | |||||||||||||||
XXXX XX XXXXXXX, N.A. |
$ | 40,000,000.00 | 5.486968450 | % | $ | 40,000,000.00 | 9.784735812 | % | 5.486968450 | % | ||||||||||
CITICORP NORTH AMERICA, INC. |
$ | 40,000,000.00 | 5.486968450 | % | — | 0.000000000 | % | 5.000000000 | % | |||||||||||
THE BANK OF NOVA SCOTIA |
$ | 50,000,000.00 | 6.000000000 | % | $ | 50,000,000.00 | 12.230919765 | % | 6.858710562 | % | ||||||||||
ROYAL BANK OF SCOTLAND |
$ | 50,000,000.00 | 6.858710562 | % | $ | 50,000,000.00 | 12.230919765 | % | 6.858710562 | % | ||||||||||
THE BANK OF NEW YORK MELLON |
$ | 35,000,000.00 | 4.801097394 | % | $ | 25,000,000.00 | 6.115459883 | % | 4.801097394 | % | ||||||||||
XXXXXX XXXXXXX BANK, N.A. |
$ | 35,000,000.00 | 4.801097394 | % | $ | 20,300,000.00 | 4.965753425 | % | 4.801097394 | % | ||||||||||
XXXXXX XX
XXXXX XX XXXXXXXXX XX XXXXXX |
$ | 31,000,000.00 | 4.252400549 | % | — | 0.000000000 | % | 4.252400549 | % | |||||||||||
THE BANK OF TOKYO-MITSUBISHI UFJ LTD. |
$ | 30,000,000.00 | 4.115226337 | % | $ | 30,000,000.00 | 7.338551859 | % | 4.115226337 | % | ||||||||||
BNP PARIBAS |
$ | 30,000,000.00 | 4.115226337 | % | — | 0.000000000 | % | 4.115226337 | % | |||||||||||
GENERAL ELECTRIC CAPITAL CORPORATION |
$ | 30,000,000.00 | 4.115226337 | % | — | 0.000000000 | % | 4.115226337 | % | |||||||||||
COMPASS BANK |
$ | 29,500,000.00 | 4.046639232 | % | $ | 29,500,000.00 | 7.216242661 | % | 4.000000000 | % | ||||||||||
ROYAL BANK OF CANADA |
$ | 29,000,000.00 | 3.000000000 | % | $ | 15,000,000.00 | 3.669275930 | % | 3.978052126 | % | ||||||||||
CREDIT SUISSE, CAYMAN ISLANDS BRANCH |
$ | 25,000,000.00 | 3.429355281 | % | $ | 15,000,000.00 | 3.669275930 | % | 3.429355281 | % | ||||||||||
EXPORT DEVELOPMENT CANADA |
$ | 21,000,000.00 | 2.880658436 | % | $ | 21,000,000.00 | 5.136986301 | % | 2.880658436 | % | ||||||||||
HSBC BANK USA, NATIONAL ASSOCIATION |
$ | 20,000,000.00 | 2.743484225 | % | $ | 20,000,000.00 | 4.892367906 | % | 2.743484225 | % | ||||||||||
KEYBANK NATIONAL ASSOCIATION |
$ | 20,000,000.00 | 2.743484225 | % | — | 0.000000000 | % | 2.743484225 | % | |||||||||||
COMERICA BANK |
$ | 18,000,000.00 | 2.469135802 | % | $ | 18,000,000.00 | 4.403131115 | % | 2.469135802 | % | ||||||||||
WACHOVIA BANK, NATIONAL ASSOCIATION |
$ | 17,000,000.00 | 2.331961591 | % | — | 0.000000000 | % | 2.331961591 | % | |||||||||||
KBC BANK N.V. |
$ | 15,000,000.00 | 2.057613169 | % | — | 0.000000000 | % | 2.057613169 | % | |||||||||||
LANDESBANK BADEN-WÜRTTEMBERG (LBBW) |
$ | 15,000,000.00 | 2.057613169 | % | — | 0.000000000 | % | 2.057613169 | % | |||||||||||
US BANK NATIONAL ASSOCIATION |
$ | 15,000,000.00 | 2.057613169 | % | $ | 15,000,000.00 | 3.669275930 | % | 2.057613169 | % | ||||||||||
BARCLAYS BANK PLC |
$ | 15,000,000.00 | 2.057613169 | % | $ | 15,000,000.00 | 3.669275930 | % | 2.057613169 | % | ||||||||||
NATIONWIDE LIFE INSURANCE COMPANY |
$ | 13,000,000.00 | 1.783264746 | % | — | 0.000000000 | % | 1.783264746 | % | |||||||||||
METROPOLITAN LIFE INSURANCE COMPANY
OF CONNECTICUT |
$ | 12,500,000.00 | 1.714677641 | % | — | 0.000000000 | % | 1.714677641 | % | |||||||||||
DEUTSCHE BANK TRUST COMPANY AMERICAS |
$ | 10,000,000.00 | 1.371742113 | % | $ | 10,000,000.00 | 2.446183953 | % | 1.371742113 | % | ||||||||||
IBM CREDIT LLC |
$ | 10,000,000.00 | 1.371742113 | % | — | 0.000000000 | % | 1.371742113 | % | |||||||||||
JPMORGAN CHASE BANK, N.A. |
$ | 10,000,000.00 | 1.371742113 | % | — | 0.000000000 | % | 1.371742113 | % | |||||||||||
XXXXXXX XXXXX CAPITAL CORP |
$ | 10,000,000.00 | 1.371742113 | % | $ | 10,000,000.00 | 2.446183953 | % | 1.371742113 | % | ||||||||||
THE NORTHERN TRUST COMPANY |
$ | 10,000,000.00 | 1.371742113 | % | $ | 10,000,000.00 | 2.446183953 | % | 1.371742113 | % | ||||||||||
SUMITOMO MITSUI BANKING CORPORATION |
$ | 10,000,000.00 | 1.371742113 | % | $ | 10,000,000.00 | 2.446183953 | % | 1.371742113 | % | ||||||||||
MEGA INTERNATIONAL COMMERCIAL BANK,
SILICON VALLEY BRANCH |
$ | 8,000,000.00 | 1.097393690 | % | — | 0.000000000 | % | 1.097393690 | % | |||||||||||
NATIXIS |
$ | 6,000,000.00 | 0.823045268 | % | — | 0.000000000 | % | 0.823045268 | % | |||||||||||
STATE BANK OF INDIA |
$ | 5,000,000.00 | 0.685871056 | % | $ | 5,000,000.00 | 1.223091977 | % | 0.685871056 | % | ||||||||||
JEFFERIES FINANCE LLC |
$ | 3,500,000.00 | 0.480109739 | % | — | 0.000000000 | % | 0.480109739 | % | |||||||||||
XXXXX STREET FUNDING CLO 2005-I LTD. |
$ | 3,000,000.00 | 0.411522634 | % | — | 0.000000000 | % | 0.411522634 | % | |||||||||||
C.I.T. LEASING CORPORATION |
$ | 3,000,000.00 | 0.411522634 | % | — | 0.000000000 | % | 0.411522634 | % | |||||||||||
LOAN FUNDING XIII |
$ | 2,500,000.00 | 0.342935528 | % | — | 0.000000000 | % | 0.342935528 | % | |||||||||||
NATIONWIDE MUTUAL INSURANCE COMPANY |
$ | 2,000,000.00 | 0.274348423 | % | — | 0.000000000 | % | 0.274348423 | % | |||||||||||
| $ | 729,000,000.00 | 100.000000000 | % | $ | 408,800,000.00 | 100.000000000 | % | 100.000000000 | % | |||||||||||
SCHEDULE 2
ADDITIONAL REVOLVING COMMITMENTS
| Additional | ||||
| Revolving | ||||
| Credit | ||||
| Lenders | Commitments | |||
BBVA Compass Bank |
$ | 29,500,000.00 | ||
Barclays |
$ | 15,000,000.00 | ||
Royal Bank of Scotland |
$ | 15,000,000.00 | ||
The Bank of Nova Scotia |
$ | 14,500,000.00 | ||
State Bank of India |
$ | 5,000,000.00 | ||
Total: |
$ | 79,000,000.00 | ||
EXHIBIT A
Form
of Table to Amend and Restate the Table Set Forth in Exhibit C of the Credit Agreement (Form of
Assignment and Acceptance)
| Percentage Assigned of such | ||||||||
| aggregate Revolving Credit | ||||||||
| Commitments (set forth, to at least | ||||||||
| 8 decimals, as a percentage of the | ||||||||
| aggregate Revolving Credit | ||||||||
| Principal Amount | Commitments of all Lenders | |||||||
| Class of Interest | Assigned | thereunder) | ||||||
Revolving Credit
Commitment with a
Revolving Credit
Maturity Date of
[June 30, 2010] [June 30, 2012]: |
$ | % | ||||||
Revolving Loans with
a Revolving Credit
Maturity Date of
[June 30, 2010] [June
30, 2012]: |
||||||||
Term B-1 Loans: |
||||||||
