AMENDMENT NO. 5 TO CREDIT
AGREEMENT
This Amendment
No. 5 to Credit Agreement (this “ Amendment
” ) dated as of June 8, 2009 is made by and among
STARBUCKS CORPORATION, a Washington corporation (the “
Borrower ”), BANK OF AMERICA, N.A., a national
banking association organized and existing under the laws of the
United States (“ Bank of America ”), in
its capacity as administrative agent for the Lenders (as defined in
the Credit Agreement described below) (in such capacity, the
“ Administrative Agent ”), and each of
the Lenders signatory hereto.
WHEREAS,
the Borrower, Bank of America, as the Administrative Agent, Swing
Line Lender and L/C Issuer and the Lenders have entered into that
certain Credit Agreement dated as of August 12, 2005 (as
amended by Amendment No. 1 to Credit Agreement dated as of
August 23, 2006, Amendment No. 2 to Credit Agreement
dated as of March 30, 2007, Amendment No. 3 to Credit
Agreement dated as of August 6, 2007, Amendment No. 4 to
Credit Agreement dated as of October 31, 2008, as hereby
amended and as from time to time hereafter further amended,
modified, supplemented, restated, or amended and restated, the
“ Credit Agreement ”; capitalized terms
used in this Amendment not otherwise defined herein shall have the
respective meanings given thereto in the Credit Agreement),
pursuant to which the Lenders have made available to the Borrower a
multicurrency revolving credit facility, including a letter of
credit facility and a swing line facility; and
WHEREAS,
the Borrower has advised the Administrative Agent and the Lenders
that it desires to amend certain provisions of the Credit Agreement
to clarify the intent of the parties with respect to Amendment
No. 4, and the Administrative Agent and the Lenders signatory
hereto are willing to effect such amendment on the terms and
conditions contained in this Amendment;
NOW,
THEREFORE, in consideration of the premises and further
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1.
Amendments to Credit Agreement . Subject to the terms and
conditions set forth herein, the Credit Agreement is hereby amended
as follows:
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(a)
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Section 1.01
is amended by replacing
the definition of “Consolidated EBITDA” with the
following:
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“
Consolidated EBITDA ” means, for any period, for the
Company and its Subsidiaries on a consolidated basis, an amount
equal to Consolidated Net Income for such period plus
(a) the following to the extent deducted in calculating such
Consolidated Net Income: (i) Consolidated Interest Charges for
such period, (ii) the provision for Federal, state, local and
foreign income taxes payable by the Company and its Subsidiaries
for such period, (iii) depreciation and amortization expense,
(iv) other expenses of the Company and its Subsidiaries
reducing such
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Consolidated Net Income which do not
represent a cash item in such period or any future period and
(v) up to $130,000,000 in the aggregate for lease termination
expenses and lease exit costs (whether accounted for as
restructuring costs, lease expense or otherwise) incurred during
the period beginning June 30, 2008 and ending
September 27, 2009 and minus (b) the following to
the extent included in calculating such Consolidated Net Income:
(i) Federal, state, local and foreign income tax credits of
the Company and its Subsidiaries for such period and (ii)
non-recurring gains increasing Consolidated Net Income (or reducing
net loss) which do not represent cash items for such period or any
future period.
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2.
Conditions Precedent . The effectiveness of this Agreement
and the amendments to the Credit Agreement herein provided are
subject to the satisfaction of the following conditions
precedent:
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(a)
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The
Administrative Agent shall have received each of the following
documents or instruments in form and substance reasonably
acceptable to the Administrative Agent:
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(i)
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the
Administrative Agent shall have received five (5) original
counterparts of this Amendment, duly executed by the Borrower, the
Administrative Agent and the Required Lenders; and
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(ii)
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such other documents, instruments,
opinions, certifications, undertakings, further assurances and
other matters as the Administrative Agent shall reasonably
require.
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(b)
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All
other fees and expenses payable to the Administrative Agent and the
Lenders (including the fees and expenses of counsel to the
Administrative Agent) estimated to date shall have been paid in
full (without prejudice to final settling of accounts for such fees
and expenses).
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3.
Representations and Warranties . In order to induce the
Administrative Agent and the Lenders to enter into this Amendment,
the Borrower represents and warrants to the Administrative Agent
and the Lenders as follows:
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(a)
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Before and after giving effect to
this Amendment, (A) the representations and warranties
contained in Article V and the other Loan Documents are
true and correct on and as of the date hereof, except to the extent
that such representations and warranties specifically refer to an
earlier date, in which
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