|
Exhibit 10.5
FIRST AMENDMENT
FIRST
AMENDMENT, dated as of June 27, 2008 (this “
Amendment ”), to the Amended and Restated Credit
and Guarantee Agreement, dated as of April 25, 2006 (the
“ Existing Credit Agreement ”), among
LEAR CORPORATION, a Delaware corporation (the “ U.S.
Borrower ”), certain Subsidiaries of LEAR
CORPORATION, the several lenders from time to time parties hereto
(the “ Lenders ”), the several agents
parties thereto and JPMORGAN CHASE BANK, N.A., as general
administrative agent (the “ General Administrative
Agent ”).
W I T N E S S E T H :
WHEREAS,
certain lenders (the “ Revolving Lenders
”) have made revolving credit commitments in an aggregate
principal amount of $1,700,000,000 to the U.S. Borrower pursuant to
the Existing Credit Agreement (the “ U.S. Revolving
Credit Facility ”) under which there is (i) a
$750,000,000 multi-currency revolving credit subfacility (the
“ Multi-Currency Subfacility ”) and (ii)
a $200,000,000 Canadian revolving credit subfacility (the
“ Canadian Subfacility ”; together with
the U.S. Revolving Credit Facility and the Multi-Currency
Subfacility, the “ Revolving Credit Facilities
”); and
WHEREAS,
the Borrower has requested, and the Required Refinancing Lenders
(as defined below) and the General Administrative Agent have
agreed, upon the terms and subject to the conditions set forth
herein, that (a) certain Revolving Lenders (each, an “
Extending Lender ”) will extend the final
scheduled termination date of each of their respective Revolving
Credit Commitments to January 31, 2012 and (b) the Existing Credit
Agreement will be amended as set forth herein;
NOW,
THEREFORE, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms . Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Credit
Agreement. As used in this Amendment (a) “ Required
Refinancing Lenders ” means (i) the Majority Lenders
(as defined in the Existing Credit Agreement) and (ii) each
Extending Lender and (b) “ Credit Agreement
” means the Existing Credit Agreement as amended by this
Amendment.
SECTION
2. Extended Revolving Credit Commitments . (a) Subject to
the terms and conditions set forth herein, each Extending Lender
agrees to extend the final scheduled termination date of each of
its Revolving Credit Commitments to January 31, 2012.
(b) On
the First Amendment Conversion Date (as defined below) (i) the U.S.
Revolving Credit Commitments of each Extending Lender (or its
lending affiliate) shall be reduced (the “ Revolving
Credit Commitment Reduction ”) by 33.33% (the
“ Relevant Percentage ”) of such
Extending Lender’s U.S. Revolving Credit Commitments
immediately prior to the First Amendment Conversion Date, it being
understood that the U.S. Borrower may separately agree with any
Extending Lender to waive or reduce the Relevant Percentage for
such Extending Lender only, (ii) the aggregate amount of the
Multicurrency Commitments shall be reduced to $400,000,000, with
the Multicurrency Commitment of each Multicurrency Lender being
reduced ratably, it being understood that the U.S. Borrower may
separately agree with any Multicurrency Lender to waive or reduce
such reduction for such Multicurrency Lender only, and (iii) the
aggregate amount of the Canadian Revolving Credit Commitments shall
be reduced to $100,000,000, with the Canadian Revolving Credit
Commitment of each Canadian Lender being reduced ratably, it being
understood that the Canadian Borrower may separately agree with any
Canadian Lender to waive or reduce such reduction for such Canadian
Lender only. The Multi-Currency Subfacility and the Canadian
Subfacility shall as of the First Amendment Conversion Date each
be
2
allocated to the Tranche A U.S. Revolving Credit Facility. In
order to give effect to the allocation of the Multi-Currency
Subfacility and the Canadian Subfacility to the Tranche A U.S.
Revolving Credit Facility, references in applicable provisions of
the Credit Agreement (including, without limitation, subsection
2.5(a), (b) and (d) of the Credit Agreement) to U.S. Revolving
Lenders, Non-Canadian Lenders and Non-Multicurrency Lenders shall
be deemed to be references to such Lenders only to the extent they
are Tranche A U.S. Revolving Lenders and references to U.S.
Revolving Credit Loans shall be deemed to be references to Tranche
A U.S. Revolving Credit Loans, in each case if appropriate (as
determined by the General Administrative Agent in its sole
discretion in a manner consistent with this Amendment).
(c) As
of the First Amendment Conversion Date, (i) the portion of the U.S.
Revolving Credit Commitments under the U.S. Revolving Credit
Facility held by the Extending Lenders will constitute the Tranche
A portion of the U.S. Revolving Credit Facility (the “
Tranche A U.S. Revolving Credit Facility ”, and
each U.S. Revolving Credit Loan thereunder a “ Tranche
A U.S. Revolving Credit Loan ”); provided that
the Tranche A U.S. Revolving Credit Facility may include the
Tranche A U.S. Revolving Credit Commitments of an Assuming Lender
pursuant to Section 2.6 of the Credit Agreement (and the term
“Extending Lender” will include any Assuming
Lender where applicable) and (ii) the portion of the U.S. Revolving
Credit Commitments under the U.S. Revolving Credit Facility held by
the Revolving Lenders which are not Extending Lenders (each, a
“ Declining Lender ”) shall constitute
the Tranche B portion of the U.S. Revolving Credit Facility (the
“ Tranche B U.S. Revolving Credit Facility
”, and each U.S. Revolving Credit Loan thereunder a
“ Tranche B U.S. Revolving Credit Loan
”). The Tranche A U.S. Revolving Credit Facility and the
Tranche B. U.S. Revolving Credit Facility together shall constitute
the U.S. Revolving Credit Facility, the Tranche A U.S. Revolving
Credit Loans and the Tranche B U.S. Revolving Credit Loans together
shall constitute the U.S. Revolving Credit Loans and each
Lender’s commitment under the Tranche A U.S. Revolving
Credit Facility and the Tranche B U.S. Revolving Credit Facility
shall constitute such Lender’s U.S. Revolving Credit
Commitment. Notwithstanding anything to the contrary contained in
the Credit Agreement, on the First Amendment Conversion Date
outstanding U.S. Revolving Credit Loans and U.S. Revolving Credit
Loans made by Assuming Lenders, if any, shall be deemed to be
reallocated (i) as Tranche A U.S. Revolving Credit Loans in an
amount equal to the aggregate amount of U.S. Revolving Credit Loans
of Tranche A U.S. Revolving Lenders immediately prior to the First
Amendment Conversion Date; provided that any Assuming
Lenders shall make available to the General Administrative Agent
such amounts in immediately available funds as the General
Administrative Agent shall determine, for the benefit of the other
relevant Tranche A U.S. Revolving Lenders as being required in
order to cause, after giving effect to the application of such
amounts to make payments to such other relevant Tranche A U.S.
Revolving Lenders, the Tranche A U.S. Revolving Credit Loans to be
held ratably by all Tranche A U.S. Revolving Lenders in accordance
with their respective Tranche A U.S. Revolving Credit Commitments
and (ii) as Tranche B U.S. Revolving Credit Loans in an amount
equal to the aggregate amount of U.S. Revolving Credit Loans of
Tranche B U.S. Revolving Lenders immediately prior to the First
Amendment Conversion Date. All such Loans deemed to be reallocated
on the First Amendment Conversion Date (“ U.S.
Reallocated Loans ”) will have initial Interest
Periods commencing on the First Amendment Conversion Date and
ending on the same dates as the Interest Periods applicable to the
U.S. Reallocated Loans immediately prior to the First Amendment
Conversion Date and will bear interest during such Interest Periods
based on Eurodollar Rates that were applicable to the U.S.
Reallocated Loans immediately prior to the First Amendment
Conversion Date, which will be deemed to be the Eurodollar Rates
applicable to the U.S. Reallocated Loans hereunder on the First
Amendment Conversion Date (but the Applicable Margins with respect
to the U.S. Reallocated Loans will be as provided for in this
Amendment). On the First Amendment Conversion Date, the General
Administrative Agent shall effect such entries in the Register (and
the U.S. Revolving Lenders will make such payments among themselves
and to the U.S. Borrower and the General Administrative Agent as
directed by the General Administrative Agent) so that, after giving
effect thereto, each Tranche A U.S. Revolving Lender holds a
principal amount of the U.S. Reallocated Loans (i.e., Tranche A
U.S. Revolving Credit Loans) equal to the
3
principal amount of Loans under the U.S. Revolving Credit
Facility held by such Tranche A U.S. Revolving Lender and each
Tranche B U.S. Revolving Credit Lender holds a principal amount of
the U.S. Reallocated Loans (i.e., Tranche B U.S. Revolving Credit
Loans) equal to the principal amount of Loans under the U.S.
Revolving Credit Facility held by such Tranche B U.S. Revolving
Lender. The U.S. Borrower also agrees to pay to the General
Administrative Agent on the First Amendment Conversion Date in
immediately available funds all accrued interest, fees and any
other amounts owing in respect of the Refinanced Loans as of such
date (excluding any amounts payable pursuant to Section 9.11 of the
Existing Credit Agreement except as a result of prepayments funded
from the proceeds of U.S. Revolving Credit Loans made by Assuming
Lenders).
In
order to give effect to the allocation of the U.S. Revolving Credit
Facility to the Tranche A U.S. Revolving Credit Facility and the
Tranche B U.S. Revolving Credit Facility, defined terms and other
provisions in the Credit Agreement relating to calculating
availability, funding and outstandings under the Revolving Credit
Commitments (including, without limitation, the definitions of
“Aggregate Percentage”, “Aggregate
U.S. Revolving Credit Outstandings” and “U.S.
Revolving Credit Commitment”) shall be deemed to be
amended as appropriate (as determined by the General Administrative
Agent in its sole discretion in a manner consistent with this
Amendment) to give effect to the intent of this Amendment.
(d) As
of the First Amendment Conversion Date, the Letter of Credit
subfacility under the U.S. Revolving Credit Facility (reduced as
provided in Section 3(j) below) shall be allocated to the Tranche A
U.S. Revolving Credit Facility and the Tranche B U.S. Revolving
Credit Facility as set forth in subsection 8.1(c) of the Credit
Agreement. The Tranche A Letters of Credit and the Tranche B
Letters of Credit together shall constitute the Letters of Credit.
Any Letters of Credit outstanding on the First Amendment Conversion
Date (“ 2008 Existing Letters of Credit
”) shall on the First Amendment Conversion Date be deemed
to be Tranche A Letters of Credit. The risk participations in 2008
Existing Letters of Credit shall be automatically adjusted such
that (i) each Tranche A U.S. Revolving Lender shall have a risk
participation in each such 2008 Existing Letter of Credit equal to
its U.S. Revolving Credit Commitment Percentage and (ii) no Tranche
B U.S. Revolving Lender shall have any risk participation in 2008
Existing Letters of Credit. The U.S. Borrower agrees to pay to the
General Administrative Agent on the First Amendment Conversion Date
in immediately available funds all accrued Letter of Credit fees
and any other amounts owing in respect of the Existing Letters of
Credit as of such date.
(e) As
of the First Amendment Conversion Date, the Swing Line subfacility
under the U.S. Revolving Credit Facility (reduced as provided in
Section 3(a)(viii) below) shall be allocated to the Tranche A U.S.
Revolving Credit Facility. Any Swing Line Loans outstanding on the
First Amendment Conversion Date (“ Existing Swing Line
Loans ”) shall on the First Amendment Conversion Date
be deemed to be outstanding under the Tranche A U.S. Revolving
Credit Facility. The U.S. Borrower agrees to pay to the General
Administrative Agent on the First Amendment Conversion Date in
immediately available funds all accrued interest, fees and any
other amounts owing in respect of Existing Swing Line Loans as of
such date. In order to give effect to the allocation of the Swing
Line subfacility to the Tranche A U.S. Revolving Credit Facility,
references in applicable provisions of the Credit Agreement to U.S.
Revolving Lenders shall be deemed to be references to Tranche A
U.S. Revolving Lenders and references to U.S. Revolving Credit
Loans shall be deemed to be references to Tranche A U.S. Revolving
Loans, in each case if appropriate (as determined by the General
Administrative Agent in its sole discretion in a manner consistent
with this Amendment).
(f)
(i) As
of the First Amendment Conversion Date, each applicable Borrower
shall repay the Multicurrency Loans (other than Swing Line
Multicurrency Loans) of each Declining Lender (or its Counterpart
Lender). Notwithstanding anything to the contrary contained in the
Credit Agreement, on the First Amendment Conversion Date
outstanding Multicurrency Loans, if any, shall be deemed to be
reallocated (in the applicable currencies) to the extent required
so that the Multicurrency Loans are held
4
ratably by the Multicurrency Lenders based on their respective
Multicurrency Commitment Percentage on the First Amendment
Conversion Date. All such Loans (“ Multicurrency
Reallocated Loans ”) will have initial Interest
Periods commencing on the First Amendment Conversion Date and
ending on the same dates as the Interest Periods applicable to the
Multicurrency Reallocated Loans immediately prior to the First
Amendment Conversion Date and will bear interest during such
Interest Periods based on Eurocurrency Rates that were applicable
to the Multicurrency Reallocated Loans immediately prior to the
First Amendment Conversion Date, which will be deemed to be the
Eurocurrency Rates applicable to the Multicurrency Reallocated
Loans hereunder on the First Amendment Conversion Date (but the
Applicable Margins with respect to the Multicurrency Reallocated
Loans will be as provided for in this Amendment). On the First
Amendment Conversion Date, the General Administrative Agent shall
effect such entries in the Register (and the Multicurrency Lenders
will make such payments among themselves and to the applicable
Borrowers and the General Administrative Agent as directed by the
General Administrative Agent) so that, after giving effect thereto,
each Multicurrency Lender holds a principal amount of the
Multicurrency Reallocated Loans equal to its ratable share of the
Multicurrency Commitments on the First Amendment Conversion Date.
Each applicable Borrower also agrees to pay to the General
Administrative Agent on the First Amendment Conversion Date in
immediately available funds all accrued interest, fees and any
other amounts owing in respect of the Multicurrency Loans as of
such date (including any amounts payable pursuant to Section 9.11
of the Existing Credit Agreement).
(ii)
As of the First Amendment Conversion Date, each applicable Borrower
shall repay Loans under the Canadian Subfacility (“
Canadian Loans ”) of each Declining Lender (or its
Counterpart Lender). Notwithstanding anything to the contrary
contained in the Credit Agreement, on the First Amendment
Conversion Date outstanding Canadian Loans, if any, shall be deemed
to be reallocated to the extent required so that the Canadian Loans
are held ratably by the Canadian Lenders based on their respective
Canadian Revolving Credit Commitment Percentage on the First
Amendment Conversion Date. All such Loans (“ Canadian
Reallocated Loans ”) will bear interest based on the
applicable Canadian Base Rate (but the Applicable Margins with
respect to the Canadian Reallocated Loans will be as provided for
in this Amendment). On the First Amendment Conversion Date, the
General Administrative Agent shall effect such entries in the
Register (and the Canadian Lenders will make such payments among
themselves and to the Canadian Borrower and the General
Administrative Agent as directed by the General Administrative
Agent) so that, after giving effect thereto, each Canadian Lender
holds a principal amount of the Canadian Reallocated Loans equal to
its ratable share of the Canadian Revolving Credit Commitments on
the First Amendment Conversion Date. The Canadian Borrower also
agrees to pay to the General Administrative Agent on the First
Amendment Conversion Date in immediately available funds all
accrued interest, fees and any other amounts owing in respect of
the Canadian Loans as of such date (including any amounts payable
pursuant to Section 9.11 of the Existing Credit Agreement).
(g)
On
March 23, 2010, the Borrowers shall repay all Tranche B U.S.
Revolving Credit Loans and all other amounts owed under the Tranche
B U.S. Revolving Credit Facility (including facility fees and
Letter of Credit fees).
(h) The
aggregate principal amount of all Term Loans outstanding under the
Existing Credit Agreement on the First Amendment Effective Date and
the First Amendment Conversion Date, the aggregate amount of all
Revolving Credit Commitments (as reduced as provided in this
Amendment) and the aggregate principal amount of all Revolving
Credit Loans (except to the extent repaid pursuant to this
Amendment) shall continue to be outstanding under the Credit
Agreement and the terms of the Credit Agreement will govern the
rights of the Borrowers and the Lenders with respect thereto.
5
SECTION
3. Amendment of the Existing Credit Agreement . (a)
Subsection 1.1 of the Existing Credit Agreement is hereby amended
as follows:
|
|
|
|
|
|
|
(i) by adding the following new
definitions, to appear in proper alphabetical order:
|
|
|
|
|
|
|
|
|
“
Aggregate Available Tranche A U.S. Revolving Credit
Commitments ”: as at any date of determination with
respect to all Tranche A U.S. Revolving Lenders, an amount in U.S.
Dollars equal to the Available U.S. Revolving Credit Commitments of
all Tranche A U.S. Revolving Lenders on such date.
|
|
|
|
|
|
|
|
|
“
Aggregate Available Tranche B U.S. Revolving Credit
Commitments ”: as at any date of determination with
respect to all Tranche B U.S. Revolving Lenders, an amount in U.S.
Dollars equal to the Available U.S. Revolving Credit Commitments of
all Tranche B U.S. Revolving Lenders on such date.
|
|
|
|
|
|
|
|
|
“
Aggregate Tranche A U.S. Revolving Credit Commitments
”: the aggregate amount of the Tranche A U.S. Revolving
Credit Commitments of all Tranche A U.S. Revolving Lenders, as such
amount may be increased pursuant to subsection 2.6.
|
|
|
|
|
|
|
|
|
“
Aggregate Tranche B U.S. Revolving Credit Commitments
”: the aggregate amount of the Tranche B U.S. Revolving
Credit Commitments of all Tranche B U.S. Revolving
Lenders.
|
|
|
|
|
|
|
|
|
“
First Amendment ”: the First Amendment dated as of
June 27, 2008 to this Agreement.
|
|
|
|
|
|
|
|
|
“
First Amendment Conversion Date ”: July 11, 2008
or such later date as agreed by the U.S. Borrower and the General
Administrative Agent.
|
|
|
|
|
|
|
|
|
“ First Amendment Effective Date ”: the
date on which the conditions precedent set forth in Section 4 of
the First Amendment shall have been satisfied, which date is July
3, 2008.
|
|
|
|
|
|
|
|
|
“
Requested U.S. Revolving Credit Loans ”: as
defined in subsection 2.5(b).
|
|
|
|
|
|
|
|
|
“
Tranche A Letter of Credit ”: as defined in
subsection 8.1(c).
|
|
|
|
|
|
|
|
|
“
Tranche A U.S. Dollar Funding Commitment Percentage
”: as at any date of determination (after giving effect
to the making and payment of any Loans made on such date pursuant
to subsection 2.5), with respect to any Tranche A U.S.
Revolving Lender, that percentage which the Available U.S.
Revolving Credit Commitment of such Tranche A U.S. Revolving Lender
then constitutes of the Aggregate Available Tranche A U.S.
Revolving Credit Commitments.
|
|
|
|
|
|
|
|
|
“
Tranche A U.S. Revolving Credit Commitment ”: as
to any U.S. Revolving Lender at any time, its obligation to make
U.S. Revolving Credit Loans that are Tranche A Revolving Credit
Loans to, and/or participate in Swing Line Dollar Loans made to and
Tranche A Letters of Credit issued for the account of, the U.S.
Borrower and its Subsidiaries in an aggregate amount not to exceed
at any time outstanding the U.S. Dollar amount set forth opposite
such U.S. Revolving Lender’s name in Schedule I under
the
|
6
|
|
|
|
|
|
|
|
heading
“Tranche A U.S. Revolving Credit Commitment”,
as such amount may be reduced from time to time pursuant to
subsection 2.4 and the other applicable provisions
hereof.
|
|
|
|
|
|
|
|
“
Tranche A U.S. Revolving Credit Facility ”: as
defined in the First Amendment.
|
|
|
|
|
|
|
|
|
“
Tranche A U.S. Revolving Credit Loan ”: as defined
in the First Amendment.
|
|
|
|
|
|
|
|
|
“
Tranche A U.S. Revolving Lender ”: the Lenders
listed in Part A of Schedule I hereto which shall, in each case,
have Tranche A U.S. Revolving Credit Commitments.
|
|
|
|
|
|
|
|
|
“
Tranche B Letter of Credit ”: as defined in
subsection 8.1(c).
|
|
|
|
|
|
|
|
|
“
Tranche B U.S. Dollar Funding Commitment Percentage
”: as at any date of determination (after giving effect
to the making and payment of any Loans made on such date pursuant
to subsection 2.5), with respect to any Tranche B U.S.
Revolving Lender, that percentage which the Available U.S.
Revolving Credit Commitment of such Tranche B U.S. Revolving Lender
then constitutes of the Aggregate Available Tranche B U.S.
Revolving Credit Commitments.
|
|
|
|
|
|
|
|
|
“
Tranche B U.S. Revolving Credit Commitment ”: as
to any U.S. Revolving Lender at any time, its obligation to make
U.S. Revolving Credit Loans that are Tranche B U.S. Revolving
Credit Loans to, and/or participate in Tranche B Letters of Credit
issued for the account of, the U.S. Borrower and its Subsidiaries
in an aggregate amount not to exceed at any time outstanding the
U.S. Dollar amount set forth opposite such U.S. Revolving
Lender’s name in Schedule I under the heading
“Tranche B U.S. Revolving Credit Commitment”,
as such amount may be reduced from time to time pursuant to
subsection 2.4 and the other applicable provisions
hereof.
|
|
|
|
|
|
|
|
|
“
Tranche B U.S. Revolving Credit Facility ”: as
defined in the First Amendment.
|
|
|
|
|
|
|
|
|
“
Tranche B U.S. Revolving Credit Loan ”: as defined
in the First Amendment.
|
|
|
|
|
|
|
|
|
“
Tranche B U.S. Revolving Lender ”: the Lenders
listed in Part A of Schedule I hereto which shall, in each case,
have Tranche B U.S. Revolving Credit Commitments.
|
|
|
|
|
|
|
|
(ii) by
deleting the definition of “ Applicable Margin
” and substituting therefor the following:
|
|
|
|
|
|
|
|
|
“
Applicable Margin ”: (a) for each Extension of
Credit under the Tranche B U.S. Revolving Credit Facility, the
applicable rate per annum determined pursuant to clause (a) of the
Pricing Grid, (b) for each Term Loan, the applicable rate per annum
set forth in clause (b) of the Pricing Grid and (c) for each
Extension of Credit other than an Extension of Credit under the
Tranche B U.S. Revolving Credit Facility and Term Loans, the
applicable rate per annum determined pursuant to clause (c) of the
Pricing Grid.
|
7
|
|
|
|
|
|
|
(iii) by deleting the definition of “
Conversion Sharing Percentage ” and substituting
therefor the following:
|
|
|
|
|
|
|
|
|
“
Conversion Sharing Percentage ”: on any date with
respect to any U.S. Revolving Credit Lender and any Loans or
Acceptances, as the case may be, outstanding in any currency other
than U.S. Dollars, the percentage of such Loans or Acceptances, as
the case may be, such that, after giving effect to the conversion
of such Loans or Acceptances, as the case may be, to U.S. Dollars
and the purchase and sale by the U.S. Revolving Credit Lenders of
participating interests as contemplated by subsection 17.8, the
Committed Revolving Outstandings Percentage of such U.S. Revolving
Credit Lender will equal such U.S. Revolving Credit
Lender’s U.S. Revolving Credit Commitment Percentage on
such date (calculated immediately prior to giving effect to any
termination or expiration of the U.S. Revolving Credit Commitments
on the Conversion Date).
|
|
|
|
|
|
|
|
(iv) by amending the definition of “
Indebtedness ” by adding at the end thereof the
following:
|
|
|
|
|
|
|
|
|
Notwithstanding the
foregoing, except for purposes of determining the Applicable
Margin, Indebtedness shall not include at any time the foreign
currency equivalent of up to $50,000,000 of obligations of the U.S.
Borrower and its Subsidiaries in respect of Chinese Acceptance
Notes. As used herein, “ Chinese Acceptance Notes
” means acceptance notes issued by Chinese banks in the
ordinary course of business for the account of any direct or
indirect Chinese Subsidiary of the U.S. Borrower to effect the
current payment of goods and services in accordance with customary
trade terms in China.
|
|
|
|
|
|
|
|
(v) by
amending clause (a) to the definition of “ Pricing
Grid ” by (x) deleting the parenthetical and
inserting in lieu thereof “(other than Extensions of
Credit under the Tranche A U.S. Revolving Credit Facility and Term
Loans)” and (y) deleting all references to
“Multicurrency Loans”, “Canadian Base
Rate Loans” and “Prime Rate Loans” in
both clause (a), and the grid set forth in such clause
(a).
|
|
|
|
|
|
|
|
(vi) by
adding the following clause (c) to the definition of “
Pricing Grid ”:
|
|
|
|
|
|
|
|
|
(c) with respect to Extensions of Credit under the Tranche A U.S.
Revolving Credit Facility, the Multicurrency Commitments and the
Canadian Revolving Credit Commitments, as of the First Amendment
Conversion Date, initially (i) 2.000% per annum in the case of
Eurodollar Loans and Multicurrency Loans and (ii) 1.000% per annum
in the case of ABR Loans, Canadian Base Rate Loans and Prime Rate
Loans, in each case until the next Adjustment Date and then
calculated as set forth below:
|
8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Applicable Margin
|
|
|
|
|
|
|
|
|
|
|
|
Category
|
|
Index Debt
Rating Level
|
|
Eurodollar/
Multicurrency Loans
|
|
ABR Loans,
Canadian Base
Rate Loans and
Prime Rate Loans
|
|
Facility Fee Rate
|
|
|
|
|
|
|
|
|
|
|
I
|
|
• BB+ and • Ba1
|
|
1.000%
|
|
0%
|
|
0.350%
|
|
|
|
|
|
|
|
|
|
|
II
|
|
• BB or • Ba2
|
|
1.250%
|
|
.250%
|
|
.500%
|
|
|
|
|
|
|
|
|
|
|
III
|
|
• BB- or • Ba3
|
|
1.750%
|
|
.750%
|
|
.500%
|
|
|
|
|
|
|
|
|
|
|
IV
|
|
• B+ or • B1
|
|
2.000%
|
|
1.000%
|
|
.500%
|
|
|
|
|
|
|
|
|
|
|
V
|
|
<B+ and <B1
|
|
2.250%
|
|
1.250%
|
|
.500%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(vii)
by amending the last paragraph in the definition of “
Pricing Grid ” by (i) adding “or
Category V (in the case of clause (c) above)” at the end
of each of the first and third sentences and (ii) replacing the
last sentence at the end of such paragraph with the
following:
|
|
|
|
|
|
|
|
In the case of
Categories II through IV of clause (c) above, (a) if the Index Debt
ratings by S&P and Moody’s differ by one Category,
the applicable Category shall be determined based on the higher of
the two ratings, (b) if the Index Debt ratings by S&P and
Moody’s differ by two Categories, the applicable Category
shall be one Category below the higher of the two ratings and (c)
if the Index Debt ratings by S&P and Moody’s differ
by more than two Categories, the applicable Category shall be two
Categories below the higher of the two ratings.
|
|
|
|
|
|
|
(viii)
by amending the definitions of “ Swing Line Dollar
Commitment ” and “ Swing Line
Multicurrency Commitment ” by replacing in each
definition the amount “$150,000,000” with the
amount “$100,000,000”.
|
|
|
|
|
|
|
(ix)
by deleting the definition of “ Revolving Credit
Termination Date ” and substituting therefor the
following:
|
|
|
|
|
|
|
|
“ Revolving Credit Termination Date ”:
(a) with respect to Revolving Credit Commitments other than Tranche
B U.S. Revolving Credit Commitments, January 31, 2012 and (b) with
respect to Tranche B U.S. Revolving Credit Commitments, March 23,
2010.
|
|
|
|
|
|
|
(ix)
by adding the following at the end of the definition of
“U.S. Revolving Credit Commitment
Percentage”:
|
|
|
|
|
|
|
|
The U.S. Revolving
Credit Commitment Percentage for each Tranche A U.S. Revolving
Lender will be calculated as if the Tranche B U.S. Revolving Credit
Commitments were terminated, and the U.S. Revolving Credit
Commitment Percentage for each Tranche B U.S. Revolving Lender will
be calculated as if the Tranche A U.S. Revolving Credit Commitments
were terminated. Notwithstanding the foregoing sentence, for
purposes of Section 17.8 and the definition of
“Conversion Sharing Percentage”, the U.S.
Revolving Credit Commitment Percentage of each U.S. Revolving
Lender shall be calculated on the basis of its share of the
aggregate of the Tranche A U.S. Revolving Credit Commitments and
the Tranche B U.S. Revolving Credit Commitments taken as a single
class (as
|
9
|
|
|
|
|
|
|
described in the
first sentence of this definition) rather than on the basis of its
share of the Tranche A U.S. Revolving Credit Commitments or the
Tranche B U.S. Revolving Credit Commitments, as the case may
be.
|
|
|
|
|
|
|
(b)
Subsection 2.1 of the Existing Credit Agreement is amended by
inserting the following clause (c):
|
|
|
|
|
|
|
|
(c) Notwithstanding
the foregoing, on and after the First Amendment Conversion Date,
U.S. Revolving Credit Loans shall either be Tranche A U.S.
Revolving Credit Loans or Tranche B U.S. Revolving Credit Loans, as
determined by the U.S. Borrower or as provided in Section 2(c) of
the First Amendment, provided that (i) a Tranche A U.S.
Revolving Lender shall only be required to make a Tranche A U.S.
Revolving Credit Loan if, after giving effect thereto, (A) the
Available U.S. Revolving Credit Commitment of each Tranche A U.S.
Revolving Lender is greater than or equal to zero and (B) the
Aggregate Total Revolving Outstandings of all Tranche A U.S.
Lenders do not exceed the Aggregate Tranche A U.S. Revolving Credit
Commitments and (ii) a Tranche B U.S. Revolving Lender shall only
be required to make a Tranche B U.S. Revolving Credit Loan if,
after giving effect thereto, (A) the Available U.S. Revolving
Credit Commitment of each Tranche B U.S. Revolving Lender is
greater than or equal to zero and (B) the Aggregate Total Revolving
Outstandings of all Tranche B Lenders do not exceed the Aggregate
Tranche B U.S. Revolving Credit Commitments. The U.S. Borrower
shall specify in each borrowing notice pursuant to subsection 2.3
whether the requested U.S. Revolving Credit Loan shall be a Tranche
A U.S. Revolving Credit Loan or a Tranche B U.S. Revolving Credit
Loan, and such U.S. Revolving Credit Loan shall be funded on the
basis of the Tranche A U.S. Dollar Funding Commitment Percentages
or the Tranche B U.S. Dollar Funding Commitment Percentages, as
applicable. All references in this Section 2 to U.S. Revolving
Lenders shall on and after the First Amendment Conversion Date be
deemed to be references to Tranche A U.S. Revolving Lenders in the
case of a Tranche A U.S. Revolving Credit Loan or Tranche A U.S.
Revolving Credit Commitment and to Tranche B U.S. Revolving Lenders
in the case of a Tranche B U.S. Revolving Credit Loan or Tranche B
U.S. Revolving Credit Commitment. The General Administrative Agent
shall record in the Register maintained pursuant to subsection
17.6(d) and subsection 2.2(c) whether a U.S. Revolving Credit Loan
made hereunder is a Tranche A U.S. Revolving Credit Loan or a
Tranche B U.S. Revolving Credit Loan. The U.S. Borrower shall have
the right to terminate or reduce the Tranche A U.S. Revolving
Credit Commitments and the Tranche B U.S. Revolving Credit
Commitments in accordance with subsection 2.4 without being
required to make such termination or reduction pro
rata between Tranche A U.S. Revolving Credit Commitments and
Tranche B U.S. Revolving Credit Commitments (it being understood
that the U.S. Borrower shall specify whether such termination or
reduction shall apply to the Tranche A U.S. Revolving Credit
Commitments or the Tranche B U.S. Revolving Credit Commitments).
The facility fee under subsection 9.5 shall be payable to each
Tranche B U.S. Revolving Lender with respect to its Tranche B U.S.
Revolving Credit Commitments to but excluding the date the Tranche
B U.S. Revolving Credit Commitments have terminated and the
Obligations owed to Tranche B U.S. Revolving Lenders have been paid
in full.
|
|
|
|
|
|
|
(c)
Subsection 2.3 of the Existing Credit Agreement is amended by (i)
adding after the phrase “Aggregate Available U.S.
Revolving Credit Commitments” in clause (A) of the second
sentence of such subsection the phrase “under the Tranche
A U.S. Revolving Credit Facility or Tranche B U.S. Revolving Credit
Facility, as applicable,” and (ii) replacing the
phrase
|
10
|
|
|
|
|
|
“U.S.
Dollar Funding Commitment Percentage” with the phrase
“Tranche A U.S. Dollar Funding Commitment Percentage or
Tranche B U.S. Dollar Funding Commitment Percentage, as
applicable,”.
|
|
|
|
|
|
|
(d)
Subsection 2.4 of the Existing Credit Agreement is amended by
adding before the proviso the following phrase “, with
such reductions being applied to the Tranche A U.S. Revolving
Credit Commitments and/or Tranche B U.S. Revolving Credit
Commitments as the U.S. Borrower determines in its sole
discretion”.
|
|
|
|
|
|
|
(e)
Subsection 2.5(b) of the Existing Credit Agreement is replaced in
its entirety with the following:
|
|
|
|
|
|
|
|
If
on any Borrowing Date on which a Borrower has requested the
Multicurrency Lenders to make Multicurrency Loans (the “
Requested Multicurrency Loans ”) or the U.S.
Revolving Lenders to make U.S. Revolving Credit Loans (the
“ Requested U.S. Revolving Credit Loans
”), (i) the principal amount of the Requested
Multicurrency Loans to be made by any Multicurrency Lender
exceeds the Available Multicurrency Commitment of such
Multicurrency Lender on such Borrowing Date (before giving effect
to the making and payment of any Loans required to be made pursuant
to this subsection 2.5 on such Borrowing Date) or the principal
amount of the Requested U.S. Revolving Credit Loans to be made by
any Multicurrency Lender exceeds the Available U.S.
Revolving Credit Commitment of such Multicurrency Lender on such
Borrowing Date (before giving effect to the making and payment of
any Loans required to be made pursuant to this subsection 2.5 on
such Borrowing Date) and (ii) the U.S. Dollar Equivalent of the
amount of such excess is less than or equal to the aggregate
Available U.S. Revolving Credit Commitments of all
Non-Multicurrency Lenders (before giving effect to the making and
payment of any Loans pursuant to this subsection 2.5 on such
Borrowing Date), each Non-Multicurrency Lender shall make a U.S.
Revolving Credit Loan to the U.S. Borrower on such Borrowing Date,
and the proceeds of such U.S. Revolving Credit Loans shall be
simultaneously applied to repay outstanding U.S. Revolving Credit
Loans, Canadian Revolving Credit Loans and/or Multicurrency Loans
of the Multicurrency Lenders or their Counterpart Lenders (as
directed by the U.S. Borrower) in each case in amounts such that,
after giving effect to (1) such borrowings and repayments and (2)
the borrowing from the Multicurrency Lenders of the Requested
Multicurrency Loans or the Requested U.S. Revolving Credit Loans,
the Committed Revolving Outstandings Percentage of each U.S.
Revolving Lender will equal (as nearly as possible) its U.S.
Revolving Credit Commitment Percentage. To effect such borrowings
and repayments, (x) not later than 12:00 Noon, New York City
time, on such Borrowing Date, the proceeds of such U.S. Revolving
Credit Loans shall be made available by each Non-Multicurrency
Lender to the General Administrative Agent at its office specified
in subsection 17.2 in U.S. Dollars and in immediately available
funds and the General Administrative Agent shall apply the proceeds
of such U.S. Revolving Credit Loans toward repayment of outstanding
U.S. Revolving Credit Loans, Canadian Revolving Credit Loans and/or
Multicurrency Loans of the Multicurrency Lenders or their
Counterpart Lenders (as directed by the U.S. Borrower) and (y)
concurrently with the repayment of such Loans on such Borrowing
Date, (I) the Multicurrency Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Multicurrency
Loans or the Requested U.S. Revolving Credit Loans, as the case may
be, in an aggregate amount equal to the amount so requested by such
Borrower (but not in any event greater than the Aggregate Available
Multicurrency Commitments or the Aggregate Available U.S. Revolving
Credit Commitments, as the case may be, after
|
11
|
|
|
|
|
|
|
giving effect to
the making of such repayment of any Loans on such Borrowing Date)
and (II) the relevant Borrower shall pay to the General
Administrative Agent for the account of the Lenders whose Loans to
such Borrower are repaid on such Borrowing Date pursuant to this
subsection 2.5 all interest accrued on the amounts repaid to the
date of repayment, together with any amounts payable pursuant to
subsection 9.11 in connection with such repayment.
|
|
|
|
|
|
|
(f)
Subsection 2.6 of the Existing Credit Agreement is amended by (i)
replacing all references to “U.S. Revolving Credit
Commitment” with the phrase “Tranche A U.S.
Revolving Credit Commitment”, (ii) in the last sentence
thereof, replacing (x) the phrase “U.S. Revolving Credit
Loans” with the phrase “Tranche A U.S.
Revolving Credit Loans” and (y) the phrase
“U.S. Revolving Lenders” with
“Tranche A U.S. Revolving Lenders” and (iii)
replacing the amount “$2,500,000,000” in clause
(b) with the amount
“$1,200,000,000”.
|
|
|
|
|
|
|
(g)
Subsection 3.1 of the Existing Credit Agreement is amended by (i)
inserting the phrase “(a)” at the beginning of
such subsection before “Subject to the terms”,
(ii) deleting clause (ii) in clause (b) of the new subsection
3.1(a) and substituting therefor “the Aggregate Total
Revolving Outstandings of all Tranche A U.S. Revolving Lenders do
not exceed the Aggregate Tranche A U.S. Revolving Credit
Commitments” and (iii) inserting the following clause
(b):
|
|
|
|
|
|
|
|
(b) Notwithstanding
the foregoing, on and after the First Amendment Conversion Date,
all Swing Line Dollar Loans shall be made under the Tranche A U.S.
Revolving Credit Facility, provided that the Swing Line
Dollar Lender shall only be required to make a Swing Line Dollar
Loan if, after giving effect thereto, (i) the Available U.S.
Revolving Credit Commitment of each Tranche A U.S. Revolving Lender
is greater than or equal to zero and (ii) the Aggregate Total
Revolving Outstandings of all Tranche A U.S. Lenders do not exceed
the Aggregate Tranche A U.S. Revolving Credit Commitments. All
references in this Section 3 to U.S. Revolving Lenders or the U.S.
Dollar Funding Commitment Percentage shall on and after the First
Amendment Conversion Date be deemed to be references to Tranche A
U.S. Revolving Lenders and the Tranche A U.S. Dollar Funding
Commitment Percentage, respectively.
|
|
|
|
|
|
|
(h)
Subsections 3.4(a) and 3.5(a) of the Existing Credit Agreement is
amended by (i) replacing all references to (x) “U.S.
Revolving Credit Commitments” with the phrase
“Tranche A U.S. Revolving Credit Commitments”,
(y) “U.S. Revolving Credit Loans” with the
phrase “Tranche A U.S. Revolving Credit Loans”
and (z) “U.S. Revolving Lenders” with the
phrase “Tranche A U.S. Revolving Lenders” and
(ii) adding the following sentence at the end of subsection
3.5(a):
|
|
|
|
|
|
|
|
Each Tranche A U.S.
Revolving Lender agrees and acknowledges that the obligation of the
U.S. Revolving Lenders under this subsection 3.5 are obligations
solely of the Tranche A U.S. Revolving Lenders.
|
|
|
|
|
|
|
(i)
Subsections 5.1, 6.1(a) and 7.1 of the Existing Credit Agreement
are amended by deleting clause (iii) in each of subsections 5.1 and
7.1 and clause (ii) in subsection 6.1(a) and substituting in each
case therefor “the Aggregate Total Revolving Outstandings
of all Tranche A U.S. Revolving Lenders do not exceed the Aggregate
Tranche A U.S. Revolving Credit Commitments”.
|
12
|
|
|
|
|
|
(j)
Subsection 8.1 of the Existing Credit Agreement is amended by (i)
replacing the amount “$400,000,000” with the
amount “$300,000,000” in clause (a) and (ii)
inserting the following clause (c):
|
|
|
|
|
|
|
|
(c) Notwithstanding
the foregoing, on and after the First Amendment Conversion Date,
Letters of Credit issued and outstanding hereunder shall either be
issued and outstanding under the Tranche A U.S. Revolving Credit
Facility (a “ Tranche A Letter of Credit
”) or issued and outstanding under the Tranche B U.S.
Revolving Credit Facility (a “ Tranche B Letter of
Credit ”), as requested by the U.S. Borrower,
provided that (i) the aggregate face amount of all Letters
of Credit outstanding at any time shall not exceed $300,000,000 and
the aggregate face amount of all Tranche B Letters of Credit
outstanding at any time shall not exceed $110,000,000 and (ii) all
Letters of Credit outstanding on the First Amendment Conversion
Date shall be deemed to be Tranche A Letters of Credit. The U.S.
Borrower shall specify in each Letter of Credit Application
submitted to the Issuing Bank after the First Amendment Conversion
Date whether the requested Letter of Credit shall be a Tranche A
Letter of Credit or a Tranche B Letter of Credit. All references in
this Section 8 (including, without limitation, subsection 8.3), in
subsection 2.5(c), in the definition of “Participating
Lender” in subsection 1.1 and in subsection 9.5(e) to
U.S. Revolving Lenders shall from the First Amendment Conversion
Date forward be deemed to be references to Tranche A U.S. Revolving
Lenders in the case of a Tranche A Letter of Credit and to Tranche
B U.S. Revolving Lenders in the case of a Tranche B Letter of
Credit. No Tranche A U.S. Revolving Lender shall be required to
take any Participating Interest, or to make any payments in respect
of a Participating Interest, in any Tranche B Letter of Credit and
no Tranche B U.S. Revolving Lender shall be required to take any
Participating Interest, or to make any payments in respect of a
Participating Interest, in any Tranche A Letter of Credit. Any
Tranche B Letters of Credit outstanding on the Revolving Credit
Termination Date for Tranche B U.S. Revolving Credit Commitments
shall from such Revolving Credit Termination Date forward for all
purposes be deemed to be Tranche A Letters of Credit.
|
|
|
|
|
|
|
(k)
Subsection 9.8 of the Existing Credit Agreement is amended by
replacing clause (a)(i) with the following:
|
|
|
|
|
|
|
|
(a)
(i) Borrowings of U.S. Revolving Credit Loans, reductions of U.S.
Revolving Credit Commitments and payments on account of principal
of or interest on the U.S. Revolving Credit Loans hereunder shall
not be required to be made pro rata between the
Tranche A U.S. Revolving Credit Facility and the Tranche B U.S.
Revolving Credit Facility. Except as provided in subsection 2.5 (A)
each borrowing of Tranche A U.S. Revolving Credit Loans by the U.S.
Borrower hereunder shall be made pro rata according
to the Tranche A U.S. Dollar Funding Commitment Percentages of the
Tranche A U.S. Revolving Lenders in effect on the date of such
borrowing and (B) each borrowing of Tranche B U.S. Revolving Credit
Loans by the U.S. Borrower hereunder shall be made pro
rata according to the Tranche B U.S. Dollar Funding
Commitment Percentages of the Tranche B U.S. Revolving Lenders in
effect on the date of such borrowing. Each borrowing of Term Loans
by the U.S. Borrower from the Term Lenders hereunder shall be made
pro rata according to the Term Percentages of the Term Lenders in
effect on the date of such borrowing. Each payment by the U.S.
Borrower on account of any facility fee hereunder shall be
allocated by the General Administrative Agent among the U.S.
Revolving Lenders in accordance with the respective amounts which
such U.S. Revolving Lenders are entitled to receive pursuant to
subsection 9.5(a). Any
|
13
|
|
|
|
|
|
|
reduction of the
Tranche A U.S. Revolving Credit Commitments of the Tranche A U.S.
Revolving Lenders shall be allocated by the General Administrative
Agent among the Tranche A U.S. Revolving Lenders pro
rata according to the U.S. Revolving Credit Commitment
Percentages of the respective Tranche A U.S. Revolving Lenders. Any
reduction of the Tranche B U.S. Revolving Credit Commitments of the
Tranche B U.S. Revolving Lenders shall be allocated by the General
Administrative Agent among the Tranche B U.S. Revolving Lenders
pro rata according to the U.S. Revolving Credit
Commitment Percentages of the respective Tranche B U.S. Revolving
Lenders. Except as provided in subsection 2.5 or subsection 9.4(d),
each payment (other than any optional prepayment) by the U.S.
Borrower on account of principal of or interest on the Tranche A
U.S. Revolving Credit Loans or Tranche B U.S. Revolving Credit
Loans shall be allocated by the General Administrative Agent
pro rata within the Tranche A U.S. Revolving Credit
Loans or Tranche B U.S. Revolving Credit Loans, as applicable,
according to the respective principal amounts thereof then due and
owing to each Tranche A U.S. Revolving Lender or Tranche B U.S.
Revolving Lender, as the case may be. Except as provided in
subsection 2.5 or subsection 9.4(d), each payment (other than any
optional prepayment) by the U.S. Borrower on account of principal
of or interest on the CAF Advances shall be allocated by the
General Administrative Agent pro rata according to
the respective principal amounts thereof then due and owing to each
U.S. Revolving Lender. Each optional prepayment by the U.S.
Borrower on account of principal of or interest on the Tranche A
U.S. Revolving Credit Loans or Tranche B U.S. Revolving Credit
Loans shall be allocated by the General Administrative Agent
pro rata within the Tranche A U.S. Revolving Credit
Loans or Tranche B U.S. Revolving Credit Loans, as applicable,
according to the respective outstanding principal amounts thereof.
Each payment (including any optional prepayment) by the U.S.
Borrower on account of principal of or interest on the Term Loans
shall be allocated by the General Administrative Agent pro rata
according to the respective principal amounts thereof then owing to
each Term Lender. All payments (including prepayments) to be made
by the U.S. Borrower hereunder (other than with respect to
Multicurrency Loans), whether on account of principal, interest,
fees or otherwise, shall be made without set-off or counterclaim
and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the General Administrative Agent, for the
account of the applicable U.S. Revolving Lenders or the Term
Lenders, as applicable, at the General Administrative
Agent’s office specified in subsection 17.2, in Dollars
and in immediately available funds. The General Administrative
Agent shall distribute such payments to the Lenders entitled to
receive the same promptly upon receipt in like funds as
received.
|
|
|
|
|
|
|
(l)
Subsection 10.1 of the Existing Credit Agreement is amended by
deleting it in its entirety and substituting in lieu thereof the
following:
|
|
|
|
|
|
|
|
The
(i) audited consolidated balance sheet of the U.S. Borrower as of
December 31, 2007 and the related statements of income and cash
flow for the fiscal year ending on such date and (ii) unaudited
consolidated balance sheet of the U.S. Borrower as of March 31,
2008 and the related statements of income and cash flow for the
fiscal quarter ending on such date, each as heretofore furnished to
the General Administrative Agent and the Lenders and certified by a
Responsible Officer of the U.S. Borrower, are complete and correct
in all material respects and fairly present the financial condition
of the U.S. Borrower on such date. All such financial statements,
including the related schedules and notes thereto, have been
prepared in conformity with GAAP applied on a consistent basis, and
all liabilities, direct and contingent, of the U.S. Borrower on
such date required to be disclosed pursuant to GAAP are disclosed
in such financial statements, subject to
|
14
|
|
|
|
|
|
|
year-end audit
adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above.
|
|
|
|
|
|
|
(m)
Subsection 10.2 of the Existing Credit Agreement is amended by (i)
deleting the phrase “As of the Restatement Date
only” and replacing it with the phrase “As of
the First Amendment Effective Date” and (ii) deleting the
date “December 31, 2005” and substituting in
lieu thereof the date “December 31,
2007”.
|
|
|
|
|
|
|
(n)
Subsection 13.3(a) of the Existing Credit Agreement is amended by
replacing the phrase “4% of Consolidated
Assets” with the phrase “5% of Consolidated
Assets”.
|
|
|
|
|
|
|
(o)
Subsection 13.3(c)(ii) of the Existing Credit Agreement is amended
by replacing the amount “$50,000,000” with the
amount “$100,000,000”.
|
|
|
|
|
|
|
(p)
Subsection 13.5 of the Existing Credit Agreement is amended by
deleting the portion from the phrase “(a)
$25,000,000” until the end of that sentence and
substituting in lieu thereof the following:
|
|
|
|
|
|
|
|
the sum of (i)
$250,000,000 plus (ii) 50% of Consolidated Net Income of the
U.S. Borrower and its Subsidiaries accrued during the period
(treated as one accounting period) from the first day of the first
fiscal quarter commencing after the First Amendment Effective Date
to the end of the most recent fiscal quarter for which financial
statements have been delivered pursuant to subsection 12.1
plus (iii) 100% of the Net Cash Proceeds from the issuance
and sale after the First Amendment Effective Date of common stock
of the U.S. Borrower or other Capital Stock of the U.S. Borrower
approved by the General Administrative Agent plus (iv)
amounts required to be expended by the U.S. Borrower to make
mandatory purchases of its Capital Stock pursuant to employee
benefit plans.
|
|
|
|
|
|
|
(q)
Subsection 17.6(c) of the Existing Credit Agreement is amended by
deleting clauses (i) – (viii) of the first proviso and
substituting in lieu thereof the following:
|
|
|
|
|
|
|
|
(i) if any Tranche
A U.S. Revolving Lender assigns a part of its rights and
obligations under this Agreement in respect of its U.S. Revolving
Credit Loans and/or U.S. Revolving Credit Commitment to an
Assignee, such Tranche A U.S. Revolving Lender shall assign
proportionate interests in its participations in the Swing Line
Dollar Loans and Letters of Credit and other rights and obligations
hereunder in respect of the Swing Line Dollar Loans and Letters of
Credit to such Assignee, (ii) if any Tranche B U.S. Revolving
Lender assigns a part of its rights and obligations under this
Agreement in respect of its U.S. Revolving Credit Loans and/or U.S.
Revolving Credit Commitment to an Assignee, such Tranche B U.S.
Revolving Lender shall assign proportionate interests in its
participations in the Letters of Credit and other rights and
obligations hereunder in respect of the Letters of Credit to such
Assignee, (iii) if any Multicurrency Lender assigns a part of its
rights and obligations under this Agreement in respect of its
Multicurrency Loans and/or Multicurrency Commitment to an Assignee,
such Multicurrency Lender shall assign proportionate interests in
its participations in the Swing Line Multicurrency Loans to such
Assignee, (iv) in the case of any such assignment to any Assignee
other than a Lender, an affiliate of a Lender or an Approved Fund,
the aggregate amount of (x) any Term Loans being assigned shall not
be less than $1,000,000 (or, if less, the then outstanding amount
of Term Loans held by the assigning Term Lender) and (y) the U.S.
Revolving Credit Commitment (or, if the U.S. Revolving
|
15
|
|
|
|
|
|
|
Credit Commitments
under the Tranche A U.S. Revolving Credit Facility or the Tranche B
U.S. Revolving Credit Facility have terminated or expired, the
aggregate principal amount of any U.S. Revolving Credit Loans and
Participating Interests in Letters of Credit under such tranche)
being assigned, the Multicurrency Commitment (or, if the
Multicurrency Commitments have terminated or expired, the aggregate
principal amount of any Multicurrency Loans) or the U.S. Dollar
Equivalent of the aggregate amount of the Canadian Revolving Credit
Commitment (or, if the Canadian Revolving Credit Commitments have
terminated or expired, the aggregate amount of Canadian Revolving
Credit Loans and Acceptance Reimbursement Obligations) being
assigned shall not be less than $10,000,000 (or (1) if less, the
then outstanding amount of such Commitments, Loans, Participating
Interests and/or Acceptance Reimbursement Obligations or (2) such
lesser amount as may be agreed by the U.S. Borrower and the
Administrative Agents), and after giving effect to such assignment
such assignor Lender, if it retains any U.S. Revolving Credit
Commitment, shall retain a U.S. Revolving Credit Commitment,
Canadian Revolving Credit Commitment or Multicurrency Commitment,
as the case may be, of at least $10,000,000 (provided that such
minimum assignment amounts shall be aggregated in respect of each
Lender and its Affiliates or Approved Funds, if any), (v) in the
case of any such assignment made by a Canadian Lender, such
Assignee must be a resident of Canada for purposes of the Tax Act
unless such assignment is made pursuant to subsection 17.8, (vi)
except in connection with an assignment of Term Loans, such
Assignee must be a Professional Market Party, (vii) with respect to
an assignment of Term Loans, no consent of any Issuing Lender, the
Canadian Administrative Agent, the Swing Line Dollar Lender or the
Swing Line Multicurrency Lender shall be required, and (viii) with
respect to an assignment of Term Loans to any Lender, any Affiliate
thereof or an Approved Fund, no consent of the Borrower or the
General Administrative Agent shall be required. Notwithstanding the
foregoing, no U.S. Revolving Lender shall assign any rights or
obligations under this Agreement in respect of U.S. Revolving
Credit Loans and/or U.S. Revolving Credit Commitments to an
Assignee if, after giving effect to such assignment, the sum of the
Multicurrency Commitment and Canadian Revolving Credit Commitment
of such assigning U.S. Revolving Lender (or its lending affiliate)
would exceed the U.S. Revolving Credit Commitment of such assigning
U.S. Revolving Lender. If the assigning Lender is a U.S. Revolving
Lender with a Multicurrency Commitment or a Canadian Revolving
Credit Commitment, the assigning Lender shall represent at the time
of the assignment that after giving effect thereto the sum of its
(or its lending affiliates’) Multicurrency Commitment and
Canadian Revolving Credit Commitment will not exceed its U.S.
Revolving Credit Commitment.
|
|
|
|
|
|
|
(r)
Subsection 17.8 of the Existing Credit Agreement is amended by
inserting after the phrase “ABR Loans”, each
time such phrase appears, the phrase “that are Tranche A
U.S. Revolving Credit Loans”.
|
|
|
|
|
|
|
(s)
Exhibit J to the Existing Credit Agreement (Form of Assignment and
Acceptance) is replaced in its entirety by the Form of Assignment
and Acceptance included in Schedule II to this
Amendment.
|
|
|
|
|
|
SECTION
4. Conditions to Effectiveness of Amendment . This Amendment
shall become effective on the date (the “ First
Amendment Effective Date ”) on which all of the
following conditions precedent have been satisfied or
waived:
|
|
|
|
|
|
|
(i)
the General Administrative Agent shall have received a counterpart
of this Amendment, executed and delivered by a duly authorized
officer of the U.S. Borrower, the other
|
16
|
|
|
|
|
|
Borrowers, the
Majority Lenders and Extending Lenders to the extent required by
clause (vi) below; provided that any Lender may signify its
consent to this Amendment by instead executing a “lender
addendum” in a form as provided by the Administrative
Agent;
|
|
|
|
|
|
|
(ii)
the General Administrative Agent shall have received an executed
Acknowledgment and Consent, in the form set forth at the end of
this Amendment, from each Loan Party signatory thereto;
|
|
|
|
|
|
|
(iii)
the General Administrative Agent shall have received (a) for
distribution to each Term Lender which has delivered an executed
counterpart of this Amendment to the General Administrative Agent
on or prior to the First Amendment Effective Date, an amendment fee
equal to 1.00% of such Term Lender’s outstanding Term
Loans on the First Amendment Effective Date (it being agreed that
the amendment fee is payable to a Term Lender only if such Term
Lender has delivered an executed counterpart of this Amendment to
the General Administrative Agent on or prior to the time that the
General Administrative Agent has received executed counterparts of
this Amendment from the Majority Lenders, as determined by the
General Administrative Agent in its sole discretion) and (b) all
other fees and amounts due and payable on or prior to the First
Amendment Effective Date for which invoices have been presented,
including all reasonable out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel) required to
be reimbursed or paid by any Loan Party hereunder or under any
other Loan Document;
|
|
|
|
|
|
|
(iv)
the General Administrative Agent shall have received such
certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of
each Loan Party as the General Administrative Agent may reasonably
require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Amendment and the other Loan
Documents to which such Loan Party is a party or is to be a
party;
|
|
|
|
|
|
|
(v)
the General Administrative Agent shall have received evidence
reasonably satisfactory to it that the U.S. Borrower has given an
irrevocable call notice to redeem all 2009 Notes outstanding on the
First Amendment Effective Date and has taken such other steps in
connection with the redemption of the 2009 Notes as the General
Administrative Agent may reasonably require; and
|
|
|
|
|
|
|
(vi)
the General Administrative Agent shall have received evidence
reasonably satisfactory to it that the aggregate principal amount
of the Tranche A U.S. Revolving Credit Commitments on the First
Amendment Effective Date (after giving effect to the minimum
Revolving Credit Commitment Reduction of 33.33% and any
simultaneous addition of any new U.S. Revolving Lenders pursuant to
Section 2.6 of the Existing Credit Agreement) will be not less than
$700,000,000.
|
|
|
|
|
|
SECTION
5. Fees Payable on the First Amendment Conversion Date . On
the First Amendment Conversion Date, the U.S. Borrower shall pay to
the General Administrative Agent, for distribution to each
Extending Lender which has delivered an executed copy of this
Amendment to the General Administrative Agent on or prior to the
First Amendment Conversion Date, an amendment fee equal to 1.25% of
such Extending Lender’s U.S. Revolving Credit Commitments
on the First Amendment Conversion Date (after giving effect to the
Revolving Credit Commitment Reduction, if applicable).
|
|
|
|
|
|
SECTION
6. Effect on the Loan Documents . (a) This Amendment shall
not extinguish the Loans outstanding under the Existing Credit
Agreement. Nothing herein contained shall be construed
|
17
|
|
|
|
|
as a substitution
or novation of the Loans outstanding under the Existing Credit
Agreement, which shall remain outstanding after the First Amendment
Effective Date and the First Amendment Conversion Date as modified
hereby. Notwithstanding any provision of this Amendment, the
provisions of subsections 9.10, 9.11, 9.12 and 17.5 of the Existing
Credit Agreement as in effect immediately prior to the First
Amendment Effective Date and the First Amendment Conversion Date
will continue to be effective as to all matters arising out of or
in any way related to facts or events existing or occurring prior
to the First Amendment Effective Date and the First Amendment
Conversion Date as to which such provisions apply. Except as
specifically amended herein, all Loan Documents shall continue to
be in full force and effect and are hereby in all respects ratified
and confirmed. Each Borrower hereby agrees, with respect to each
Loan Document to which it is a party, that: (i) all of its
obligations, liabilities and indebtedness under such Loan Document
shall remain in full force and effect on a continuous basis after
giving effect to this Amendment and (ii) all of the Liens and
security interests created and arising under such Loan Document
shall remain in full force and effect on a continuous basis, and
the perfected status and priority of each such Lien and security
interest continues in full force and effect on a continuous basis,
unimpaired, uninterrupted and undischarged, after giving effect to
this Amendment, as collateral security for its obligations,
liabilities and indebtedness under the Credit Agreement.
|
|
|
|
|
|
(b)
The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of any Lender
or the Administrative Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan
Documents.
|
|
|
|
|
|
&n
|
|
