FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
FIFTH
AMENDMENT TO
AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
This
Fifth Amendment to Amended and Restated Revolving Credit Agreement (this
“Amendment”) is entered into as of June 17, 2009, by and among the financial
institutions from time to time signatory to the Credit Agreement (as defined
below) (individually a “Lender,” and any and all such financial institutions
collectively the “Lenders”), Comerica Bank, as Administrative Agent for the
Lenders (in such capacity, the “Agent”), Arranger, Syndication Agent and
Documentation Agent, and Rackspace US, Inc., a Delaware corporation
(“Borrower”).
RECITALS
Borrower,
Agent and the Lenders are parties to that certain Amended and Restated Revolving
Credit Agreement dated as of August 31, 2007, as amended from time to time (the
“Credit Agreement”). The parties desire to amend the Credit Agreement
in accordance with the terms of this Amendment.
NOW,
THEREFORE, the parties agree as follows:
1. The
following defined terms in Section 1.1 of the Credit Agreement are hereby added
or amended and restated in their entirety to read as
follows:
““Advance(s)”
shall mean, as the context may indicate, a borrowing requested by the Borrower,
and made by the Revolving Credit Lenders under Section 2.1 hereof or the Swing
Line Lender under Section 2.5 hereof, including without limitation any
readvance, refunding or conversion of such borrowing pursuant to Section 2.3 or
2.5 hereof, and any advance deemed to have been made in respect of a Letter of
Credit under Section 3.6(a) hereof, and shall include, as applicable, a
Eurodollar-based Advance, a Eurocurrency-based Advance and a Base Rate
Advance.”
““Agent’s
Correspondent” shall mean for Eurodollar-based Advances or Eurocurrency-based
Advances, Agent’s Grand Cayman Branch (or for the account of said branch office,
at Agent’s main office in Detroit, Michigan, United States).”
““Alternate
Currency” shall mean, subject to availability and the terms and conditions of
this Agreement, (a) Euros, (b) Pounds Sterling and (c) any other freely
convertible foreign currency which Borrower requests the Agent to include as an
Alternate Currency hereunder and which is agreed to in writing by Agent and each
of the Revolving Credit Lenders.”
““Alternate
Currency Advance” shall mean any Advance that is denominated in an Alternate
Currency.”
““Alternate
Currency Sublimit” shall mean a sublimit under the Revolving Credit for
Alternate Currency Advances in an aggregate amount equal to Seventy Five Million
Dollars ($75,000,000).”
““Applicable
Interest Rate” shall mean, (i) with respect to each Revolving Credit Advance
which is not an Alternate Currency Advance, the Eurodollar-based Rate or the
Base Rate, as selected by the Borrower from time to time, (ii) with respect to
each Alternate Currency Advance, the Eurocurrency-based Rate; and (iii) with
respect to each Swing Line Advance, the Base Rate; in each case subject to the
terms and conditions of this Agreement.”
““Base
Rate” shall mean, for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) which is equal to sum of (i) the Applicable Margin plus
(ii) the greatest of (a) the Prime Rate in effect on such day; (b) the
Federal Funds Effective Rate in effect on such day plus 1.00%; and (c) subject
to Sections 11.3 and 11.4 hereof, the Floating LIBOR Rate for such day plus
1.00%. Any change in the Base Rate due to a change in any interest
rate provided for herein shall be effective as of the opening of business on the
effective date of such change.”
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““Business
Day” shall mean any day other than a Saturday or a Sunday on which commercial
banks are open for domestic and international business (including dealings in
foreign exchange) in Austin, Texas and New York, New York, and in the case of a
Business Day which relates to a Eurodollar-based Advance or Eurocurrency-based
Advance, on which dealings are carried on in the London interbank eurodollar
market.”
““Dollar Amount” shall
mean (i) with respect to each Revolving Credit Advance, Swing Line Advance or
Letter of Credit made, issued or carried (or to be made, issued or carried) in
Dollars, the principal amount thereof and (ii) with respect to each Alternate
Currency Advance made, issued or carried (or to be made, issued or carried) in
an Alternate Currency, the amount of Dollars which is equivalent to the
principal amount of such Alternate Currency Advance at the most favorable spot
exchange rate reasonably determined by Agent to be available to it for the sale
of Dollars for such Alternate Currency at approximately 11:00 A.M. (Detroit
time) two (2) Business Days before such Alternate Currency Advance is made (or
to be made) or the outstanding amount of such Alternate Currency Advance is
being determined, as such Dollar Amount may be adjusted from time to time
pursuant to Section 2.12 hereof. When used with respect to any
Alternate Currency Advance being repaid or remaining outstanding at any time or
with respect to any other sum expressed in an Alternate Currency, “Dollar
Amount” shall mean the amount of Dollars which is equivalent to the principal
amount of such Alternate Currency Advance, or the amount so expressed in such
Alternate Currency, at the most favorable spot exchange rate reasonably
determined by Agent to be available to it for the sale of such Alternate
Currency for Dollars at the relevant time. Alternate
Currency amounts of Advances made, carried or expressed in Dollars (to the
extent used herein) shall be determined by Agent in a manner consistent
herewith.”
““EMU”
shall mean Economic and Monetary Union as contemplated in the Treaty on European
Union.”
““EMU
Legislation” shall mean legislative measures of the European Council (including
European Council regulations) for the introduction of, changeover to or
operation of a single or unified European currency (whether known as the Euro or
otherwise), being in part, the implementation of the third stage of
EMU.”
““Euro”
shall mean the currency unit of the Euro as defined in the EMU
Legislation.”
““Eurocurrency-based
Advance” shall mean any Alternate Currency Advance which bears interest at the
Eurocurrency-based Rate.”
““Eurocurrency-based
Rate” shall mean a per annum interest rate which is equal to the sum of the
Applicable Margin, plus
(i) the
per annum interest rate at which deposits in the relevant eurocurrency are
offered to Agent’s Eurocurrency Lending Office by other prime banks in the
relevant eurocurrency market in an amount comparable to the relevant
Eurocurrency-based Advance and for a period equal to the relevant
Eurocurrency-Interest Period two (2) Business Days prior to the first day of
such Eurocurrency-Interest Period, divided by
(ii) a
percentage equal to 100% minus the maximum rate on such date at which Agent is
required to maintain reserves on ‘eurocurrency liabilities’ as defined in and
pursuant to Regulation D of the Board of Governors of the Federal Reserve System
or, if such regulation or definition is modified, and as long as Agent is
required to maintain reserves against a category of liabilities which includes
eurocurrency deposits or includes a category of assets which includes
eurocurrency loans, the rate at which such reserves are required to be
maintained on such category.”
““Eurocurrency-Interest
Period” shall mean, for any Eurocurrency-based Advance, an Interest Period of
one, two or three months (or any shorter or longer periods agreed to in advance
by Borrower,
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Agent and
the Lenders) as selected by Borrower, for such Eurocurrency-based Advance
pursuant to Section 2.3 hereof.”
““Eurocurrency
Lending Office” shall mean, (a) with respect to the Agent, Agent’s office
located at its Grand Caymans Branch or such other branch of Agent, domestic or
foreign, as it may hereafter designate as its Eurocurrency Lending Office by
written notice to Borrower and the Lenders and (b) as to each of the Lenders,
its office, branch or affiliate located at its address set forth on the
signature pages hereof (or identified thereon as its Eurocurrency Lending
Office), or at such other office, branch or affiliate of such Lender as it may
hereafter designate as its Eurocurrency Lending Office by written notice to
Borrower and Agent.”
““Floating
LIBOR Rate” shall mean, for any day, a per annum interest rate which is equal to
the quotient of the following:
(1) the
per annum rate of interest determined on the basis of the rate for deposits in
Dollars for a period equal to one (1) month appearing on Page BBAM of the
Bloomberg Financial Markets Information Service as of 8:00 a.m. (Detroit,
Michigan time) (or soon thereafter as practical) on such day, or if such day is
not a Business Day, on the immediately preceding Business Day. In the
event that such rate does not appear on Page BBAM of the Bloomberg Financial
Markets Information Service (or otherwise on such Service), the ‘Floating LIBOR
Rate’ shall be determined by reference to such other publicly available service
for displaying eurodollar rates as may be agreed upon by the Agent and the
Borrower, or, in the absence of such agreement, the ‘Floating LIBOR Rate’ shall,
instead, be the per annum rate equal to the average of the rate at which the
Agent is offered dollar deposits at or about 8:00 a.m. (Detroit, Michigan time)
(or soon thereafter as practical) on such day in the interbank eurodollar market
in an amount comparable to the principal amount of the Obligations hereunder
which is to bear interest at such ‘Floating LIBOR Rate’ and for a period equal
to one (1) month;
divided
by
(2) a
percentage equal to 100% minus the maximum rate on such date at which Agent is
required to maintain reserves on ‘Euro-currency Liabilities’ as defined in and
pursuant to Regulation D of the Board of Governors of the Federal Reserve System
or, if such regulation or definition is modified, and as long as Agent is
required to maintain reserves against a category of liabilities which includes
eurodollar deposits or includes a category of assets which includes eurodollar
loans, the rate at which such reserves are required to be maintained on such
category;
all as
conclusively determined by Agent, (absent manifest error), such sum to be
rounded upward, if necessary, to the nearest whole multiple of 1/100,000th of
1%.”
““Impaired
Lender” shall mean a Lender (a) that has failed to fund its Weighted Percentage
of any request for a Revolving Credit Advance in breach of Section 2.1, (b) that
has failed to fund its Weighted Percentage of any Revolving Credit Aggregate
Commitment to purchase participations in any Swing Line Advance or any Letters
of Credit, (c) that has otherwise failed to pay to Agent or any other Lender any
other amount required to be paid by it under the terms of this Agreement or any
other Loan Document, unless such Lender is disputing such obligation to pay any
such amount in good faith, (d) which the Agent, the Issuing Lender or Swing Line
Lender believes, in good faith, has defaulted in fulfilling its
obligations under any other syndicated credit facilities or as
participant in any other credit facility, (e) that has been, or is controlled by
any Person which has been, determined to be insolvent or that has become subject
to a bankruptcy or other similar proceeding or (f) any material assets or
management of which has been taken over by a governmental agency.”
““Interest
Period” shall mean with respect to a Eurodollar-based Advance or
Eurocurrency-based Advance, a Eurodollar-Interest Period or
Eurocurrency-Interest Period (as applicable), commencing on the day a
Eurodollar-based Advance or Eurocurrency-based Advance is made, or on the
effective date of an election of the Eurodollar-based Rate or Eurocurrency-based
Rate made under Section 2.3 hereof; provided, however that (i) any Interest
Period which would otherwise end on a day which is not a Business
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Day shall
end on the next succeeding Business Day, except that if the next succeeding
Business Day falls in another calendar month, such Interest Period shall end on
the next preceding Business Day, (ii) when an Interest Period begins on a day
which has no numerically corresponding day in the calendar month during which
such Interest Period is to end, it shall end on the last Business Day of such
calendar month, and (iii) no Interest Period in respect of any Advance shall
extend beyond the Revolving Credit Maturity Date.”
“”Pounds
Sterling” means the lawful currency of the United Kingdom of Great
Britain.”
“Treaty
on European Union” shall mean the Treaty of Maastricht (which was signed at
Maastricht on February 7, 1992 and came into force on November 1, 1993), as
amended by the Treaty of Amsterdam (which was signed on October 2, 1997 and came
into force on May 1, 1999) and the Treaty of Nice (which was signed on February
26, 2001 and came into force on February 1, 2003).”
2. Paragraph
(h) of the definition of the term “Permitted Investments” in Section 1.1 of the
Credit Agreement (which paragraph may appear as paragraph “(p)” in some copies
of the Credit Agreement) hereby is amended and restated in its entirety to read
as follows:
“(h) Investments
in Foreign Accounts in compliance with Section 7.14(c) hereof.”
3. All
references in the Loan Documents to the terms “Prime-based Advance” or
“Prime-based Advances” are hereby deleted and replaced with references to the
terms “Base Rate Advance” or “Base Rate Advances”, as applicable. The
definitions of the terms “Alternate Base Rate” and “Prime-based Rate” are hereby
deleted and all references in the Loan Documents to such terms are hereby
deleted and replaced with references to the term “Base
Rate”.
4. Section
2.1 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“2.1 Commitment. Subject
to the terms and conditions of this Agreement (including without limitation
Section 2.3 hereof), each Revolving Credit Lender severally and for itself alone
agrees to make (i) Advances of the Revolving Credit in Dollars to Borrower and
(ii) subject to availability under the Alternate Currency Sublimit, Alternate
Currency Advances of the Revolving Credit in Alternate Currencies to Borrower
from time to time on any Business Day during the period from the Effective Date
hereof until (but excluding) the Revolving Credit Maturity Date in an aggregate
Dollar Amount not to exceed at any one time outstanding such Lender’s Revolving
Credit Percentage of the Revolving Credit Aggregate
Commitment. Subject to the terms and conditions set forth herein,
advances, repayments and readvances may be made under the Revolving
Credit.”
5. Section
2.2(c) of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“(c) The
Agent shall maintain the Register pursuant to Section 13.8(g), and a subaccount
therein for each Revolving Credit Lender, in which Register and subaccounts
(taken together) shall be recorded (i) the amount of each Revolving Credit
Advance made hereunder, the type thereof, the applicable Alternate Currency for
each Alternate Currency Advance made hereunder, each Eurodollar-Interest Period
applicable to any Eurodollar-based Advance and each Eurocurrency-Interest Period
applicable to any Eurocurrency-based Advance, (ii) the amount of any principal
or interest due and payable or to become due and payable from Borrower to each
Revolving Credit Lender hereunder in respect of the Revolving Credit Advances
and (iii) both the amount of any sum received by the Agent hereunder from
Borrower in respect of the Revolving Credit Advances and each Revolving Credit
Lender’s share thereof.”
6. Section
2.3(a)(iii) of the Credit Agreement hereby is amended and restated in its
entirety to read as follows:
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“(iii) whether
such Revolving Credit Advance is to be a Base Rate Advance, a Eurodollar-based
Advance or a Eurocurrency-based Advance, whether such Revolving Credit Advance
is to be an Alternate Currency Advance, and if so, the applicable Alternate
Currency, and, except in the case of a Base Rate Advance, the first
Eurodollar-Interest Period or Eurocurrency-Interest Period applicable
thereto;”
7. Section
2.3(b) of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“(b) each
such Request for Revolving Credit Advance shall be delivered to Agent by 12:00
p.m. (Detroit, Michigan time) (i) four (4) Business Days prior to the proposed
date of the Revolving Credit Advance with respect to any Eurocurrency-based
Advance, (ii) three (3) Business Days prior to the proposed date of the
Revolving Credit Advance for any Eurodollar-based Advance and (iii) on the
proposed date for such Revolving Credit Advance in the case of a Base Rate
Advance;”
8. Section
2.3(c) of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“(c) on
the proposed date of such Revolving Credit Advance, (i) the sum of (x) the
aggregate principal Dollar Amount of all Revolving Credit Advances and Swing
Line Advances outstanding on such date (including, without duplication) the
Advances that are deemed to be disbursed by Agent under Section 3.6(a) hereof in
respect of Borrower’s Reimbursement Obligations hereunder), plus (y) the Letter
of Credit Obligations as of such date, in each case after giving effect to all
outstanding requests for Revolving Credit Advances and Swing Line Advances and
for the issuance of any Letters of Credit, shall not exceed the Revolving Credit
Aggregate Commitment and (ii) after giving effect to all Alternate Currency
Advances requested by Borrower on such date of determination, the aggregate
outstanding principal Dollar Amount of all Alternate Currency Advances shall not
exceed the Alternate Currency Sublimit”;
9. Section
2.3(e) of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“(e) in
the case of a Eurodollar-based Advance or Eurocurrency-based Advance, the
principal Dollar Amount of such Advance, plus the Dollar Amount of any other
outstanding Revolving Credit Advance to be then combined therewith having the
same Eurodollar-Interest Period or Eurocurrency-Interest Period (as applicable),
if any, shall be at least Two Million Five Hundred Thousand Dollars ($2,500,000)
(or a larger integral multiple of One Hundred Thousand Dollars ($100,000)) or
the remainder available under the Revolving Credit Aggregate Commitment if less
than Two Million Five Hundred Thousand Dollars ($2,500,000) and at any one time
there shall not be in effect more than five (5) different Eurodollar-Interest
Periods and five (5) different Eurocurrency-Interest Periods;
and”
10. Section
2.4(a)(ii) of the Credit Agreement hereby is amended and restated in its
entirety to read as follows:
“(ii) for
Eurodollar-based Advances or Eurocurrency-based Advances, at the Agent’s
Correspondent for the account of the Eurodollar Lending Office or Eurocurrency
Lending Office of the Agent (as applicable), not later than 12:00 p.m. (the time
of the Agent’s Correspondent) on the date of such Advance.”
11. Section
2.4(b)(ii) of the Credit Agreement hereby is amended by (i) deleting the word
“and” at the end of subsection (b)(i) thereof, (ii) deleting the period at the
end of subsection (b)(ii) thereof and substituting “; and” in lieu thereof, and
(iii) adding new subsection (b)(iii) thereto immediately following subsection
(b)(ii) thereof, as follows:
“(iii) for
Eurocurrency-based Advances, not later than 4:00 p.m. (the time of the Agent’s
Correspondent) on the date of such Revolving Credit Advance, by credit to an
account of Borrower maintained with Agent’s Correspondent or to such other
account or third party as Borrower may direct in
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compliance
with this Agreement, provided such direction is timely given and provided
further that any Alternate Currency Advances shall be disbursed in the
applicable Alternate Currency.”
12. Section
2.5(c)(iii) of the Credit Agreement hereby is amended and restated in its
entirety to read as follows:
“(iii) on
the proposed date of such Swing Line Advance, after giving effect to all
outstanding requests for Revolving Credit Advances and Swing Line Advances and
Letters of Credit requested by the Borrower on such date of determination
(including, without duplication, Advances that are deemed disbursed pursuant to
Section 3.6(a) hereof in respect of Borrower’s Reimbursement Obligations
hereunder), the sum of (x) the aggregate principal Dollar Amount of all
Revolving Credit Advances and the Swing Line Advances outstanding on such date
plus (y) the Letter of Credit Obligations on such date shall not exceed the
Revolving Credit Aggregate Commitment;”
13. Section
2.6(b) of the Credit Agreement hereby is amended by (i) redesignating the
existing Section 2.6(b) as Section 2.6(b)(i), (ii) deleting the period at the
end of subsection (b)(i) thereof and substituting “; and” in lieu thereof, and
(iii) adding the following subsection immediately
thereafter:
“(ii) Interest
on each Eurocurrency-based Advance of the Revolving Credit shall accrue at its
Eurocurrency-based Rate (but in no event in excess of the maximum non-usurious
interest rate permitted by applicable law) and shall be payable in immediately
available funds on the last day of the Eurocurrency-Interest Period applicable
thereto (and, if any Eurocurrency-Interest Period shall exceed three months,
then on the last Business Day of the third month of such Eurocurrency-Interest
Period, and at three month intervals thereafter). Interest accruing at the
Eurocurrency-based Rate shall be computed on the basis of a 360 day year and
assessed for the actual number of days elapsed from the first day of the
Eurocurrency-Interest Period applicable thereto to but not including the last
day thereof or in such other manner as is customary for computation of interest
with respect to Eurocurrency-based Advances in such Alternate Currency and is
reasonably acceptable to the Borrower and the Agent. Interest due on
a Eurocurrency-based Advance made in any Alternate Currency shall be paid in
such Alternate Currency.”
14. Section
2.6(d) of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“(d) In
the case of any Event of Default under Section 9.1(i), immediately upon the
occurrence thereof, and in the case of any other Event of Default, immediately
upon receipt by Agent of notice from the Majority Revolving Credit Lenders,
interest shall be payable on demand on all Revolving Credit Advances and Swing
Line Advances from time to time outstanding at a per annum rate equal to the
Applicable Interest Rate in respect of each such Advance plus, in the case of
Eurodollar-based Advances and Eurocurrency-based Advances, two percent (2%) for
the remainder of the then existing Interest Period, if any, and at all other
such times, and for all Base Rate Advances from time to time outstanding, at a
per annum rate equal to the Base Rate plus two percent (2%) (but in no event in
excess of the maximum non-usurious interest rate permitted by applicable
law).”
15. Section
2.7(a) of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“(a) The
Borrower may prepay all or part of the outstanding principal of any Base Rate
Advance(s) of the Revolving Credit at any time, provided that, unless the “Sweep
to Loan” system shall be in effect under Section 2.5(c)(vii) hereof, after
giving effect to any partial prepayment, the aggregate balance of Base Rate
Advance(s) of the Revolving Credit remaining outstanding shall be at least One
Million Dollars ($1,000,000), and (ii) the Borrower may prepay all or part of
the outstanding principal of any Eurodollar-based Advance or Eurocurrency-based
Advance of the Revolving Credit at any time (subject to not less than three (3)
Business Day’s notice to Agent) provided that, after giving effect to any
partial prepayment, the Dollar Amount of the unpaid portion of such Advance
which is to be refunded or converted under Section 2.3 hereof shall be at least
One Hundred Thousand Dollars ($100,000).”
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16.
Section 2.8 of the Credit Agreement hereby is amended and restated in its
entirety to read as follows:
“2.8 Base
Rate Advance in Absence of Election or Upon Default. If, (a)
as to any outstanding Eurodollar-based Advance or Eurocurrency-based Advance of
the Revolving Credit, Agent has not received payment of all outstanding
principal and accrued interest on the last day of the Interest Period applicable
thereto, or does not receive a timely Request for Advance meeting the
requirements of Section 2.3 or 2.5 hereof with respect to the refunding or
conversion of such Advance, or
(b) subject to Section 2.6(e) hereof, if on the last day of the applicable
Interest Period a Default or an Event of Default shall have occurred and be
continuing, then, on the last day of the applicable Interest Period the Dollar
Amount of the principal amount of any Eurodollar-based Advance or
Eurocurrency-based Advance which has not been prepaid shall, absent a contrary
election of the Majority Revolving Credit Lenders, be converted automatically to
a Base Rate Advance and the Agent shall thereafter promptly notify Borrower of
said action.”
17. Section
2.10(b) of the Credit Agreement hereby is amended and restated in its entirety
to read as follows:
“(b) Subject
to Section 10.2 hereof, any payments made pursuant to this Section shall be
applied first to outstanding Base Rate Advances under the Revolving Credit, next
to Swing Line Advances, then to Eurodollar-based Advances under the Revolving
Credit and then to Eurocurrency-based Advances under the Revolving
Credit. If any amounts remain thereafter, a portion of such
prepayment equivalent to the undrawn amount of any outstanding Letters of Credit
shall be held by Lender as cash collateral for the Reimbursement Obligations,
with any additional prepayment monies being applied to any Fees, costs or
expenses due and outstanding under this Agreement, and with the remainder of
such prepayment thereafter being returned to Borrower.”
18. Section
2.10(c) of the Credit Agreement hereby is amended and restated in its entirety
to read as follows:
“(c) To
the extent that, on the date any mandatory repayment of the Revolving Credit
Advances under this Section 2.10 or payment pursuant to the terms of any of the
Loan Documents is due, the Indebtedness under the Revolving Credit or any other
Indebtedness to be prepaid is being carried, in whole or in part, at the
Eurodollar-based Rate or the Eurocurrency-based Rate and no Default or Event of
Default has occurred and is continuing, Borrower may deposit the amount of such
mandatory prepayment in a cash collateral account to be held by the Agent, for
and on behalf of the Revolving Credit Lenders, on such terms and conditions as
are reasonably acceptable to Agent and upon such deposit the obligation of
Borrower to make such mandatory prepayment shall be deemed satisfied. Subject to
the terms and conditions of said cash collateral account, sums on deposit in
said cash collateral account shall be applied (until exhausted) to reduce the
principal balance of the Revolving Credit on the last day of each
Eurodollar-Interest Period or Eurocurrency-Interest Period attributable to the
Eurodollar-based Advances or Eurocurrency-based Advances of such Revolving
Advance (as applicable), thereby avoiding breakage costs under Section 11.1
hereof; provided, however, that if a Default or Event of Default shall have
occurred at any time while sums are on deposit in the cash collateral account,
Agent may, in its sole discretion, elect to apply such sums to reduce the
principal balance of such Eurodollar-based Advances or Eurocurrency-based
Advances prior to the last day of the applicable Eurodollar-Interest Period or
Eurocurrency-Interest Period, and the Borrower will be obligated to pay any
resulting breakage costs under Section 11.1.”
19. New
Section 2.10(d) is hereby added to the Credit Agreement as
follows:
“(d) Excess.
(i) If
at any time and for any reason, the aggregate Dollar Amount of all Indebtedness
owing to the Lenders under the Loan Documents is greater than Two Hundred
Million Dollars ($200,000,000) and
the sum of the aggregate outstanding principal Dollar Amount of all Alternate
Currency Advances exceeds the Alternate Currency Sublimit (the “Excess”), then,
Borrower shall,
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immediately repay
that portion of the Indebtedness outstanding to Borrower by the amount of such
Excess, and/or reduce on such day any pending request for an
Advance submitted by Borrower by the amount of such
Excess, to the extent thereof.
(ii) If
at any time and for any reason, the aggregate Dollar Amount of all Indebtedness
owing to the Lenders under the Loan Documents is less than or equal to Two
Hundred Million Dollars ($200,000,000) and
there is an Excess with respect to the Alternate Currency Sublimit, then,
Borrower shall, on the last day of each Interest Period of any
Eurocurrency-based Advance outstanding to Borrower as of such time, until the
necessary reductions of Indebtedness under this Section 2.10 have been fully
made, repay such Indebtedness carried in such Advances and/or reduce any
requests for refunding or conversion of such Advances submitted (or to be
submitted) by Borrower in respect of such Advances, by the amount of such
Excess, to the extent thereof,
Notwithstanding
the foregoing, upon the occurrence and during the continuance of any Default or
Event of Default, Borrower shall be obligated immediately to reduce the
foregoing Indebtedness hereunder by an amount sufficient to eliminate such
Excess.
Provided that no Default
or Event of Default has occurred and is continuing and provided that the
aggregate Dollar Amount of all Indebtedness owing to the Lenders under the Loan
Documents is less than or equal to Two Hundred Million Dollars
($200,000,000), Borrower’s compliance with this Section 2.10(d) shall be
tested as of the last day of each calendar quarter or, upon the written request
of Borrower from time to time, as of the last day of each calendar month,
provided Borrower furnishes Agent with current monthly financial statements
otherwise complying with the requirements of this Agreement. Upon the occurrence
and during the continuance of any Default or Event of Default or if the
aggregate Dollar Amount of all Indebtedness owing to the Lenders under the Loan
Documents is greater than Two Hundred Million Dollars ($200,000,000),
compliance with this Section 2.10(d) shall, and at Agent’s discretion, may, be
tested on a daily or other basis satisfactory to Agent in its sole
discretion.”
20. Section
2.11 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“2.11 Optional
Reduction or Termination of Revolving Credit Aggregate
Commitment. Borrower may, upon at least five (5) Business
Days’ prior written notice to the Agent, permanently reduce the Revolving Credit
Aggregate Commitment in whole at any time, or in part from time to time, without
premium or penalty, provided that: (i) each partial reduction of the Revolving
Credit Aggregate Commitment shall be in an aggregate amount equal to Ten Million
Dollars ($10,000,000) or a larger integral multiple of One Million Dollars
($1,000,000); (ii) Borrower shall prepay in accordance with the terms hereof the
amount, if any, by which the aggregate unpaid principal amount of Revolving
Credit Advances and Swing Line Advances (including, without duplication, any
deemed Advances made under Section 3.6 hereof) outstanding hereunder, plus the
Letter of Credit Obligations, exceeds the amount of the then applicable
Revolving Credit Aggregate Commitment as so reduced, together with interest
thereon to the date of prepayment; (iii) no reduction shall reduce the Revolving
Credit Aggregate Commitment to an amount which is less than the aggregate
undrawn amount of any Letters of Credit outstanding at such time; and (iv) no
such reduction shall reduce the Swing Line Maximum Amount unless Borrower so
elects, provided that the Swing Line Maximum Amount shall at no time be greater
than the Revolving Credit Aggregate Commitment; provided, however that if the
termination or reduction of the Revolving Credit Aggregate Commitment requires
the prepayment of a Eurodollar-based Advance or Eurocurrency-based Advance and
such termination or reduction is made on a day other than the last Business Day
of the then current Interest Period applicable to such Eurodollar-based Advance
or Eurocurrency-based Advance, then, pursuant to Section 11.1, Borrower shall
compensate the Revolving Credit Lenders for any losses or, so long as no Default
or Event of Default has occurred and is continuing, Borrower may deposit the
amount of such prepayment in a collateral account as provided in Section
2.10(c). Reductions of the Revolving Credit Aggregate Commitment and
any accompanying prepayments of Advances of the Revolving Credit shall be
distributed by Agent to each Revolving Credit Lender in accordance with such
Revolving Credit Lender’s Revolving Percentage thereof, and will not be
available for reinstatement by or readvance to Borrower, and any accompanying
prepayments of Advances of the Swing Line shall be distributed by Agent to the
Swing
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Line
Lender and will not be available for reinstatement by or readvance to the
Borrower. Any reductions of the Revolving Credit Aggregate Commitment hereunder
shall reduce each Revolving Credit Lender’s portion thereof proportionately
(based on the applicable Percentages), and shall be permanent and irrevocable.
Any payments made pursuant to this Section shall be applied first to outstanding
Base Rate Advances under the Revolving Credit, next to Swing Line Advances, then
to Eurodollar-based Advances of the Revolving Credit and then to
Eurocurrency-based Advances of the Revolving Credit.”
21. Section
2.12 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“2.12 Determination,
Denomination and Redenomination of Alternate Currencies.
Whenever,
pursuant to any provision of this Agreement:
(a) an
Alternate Currency Advance is initially funded, as opposed to any refunding or
conversion thereof, in an Alternate Currency, the amount to be advanced
hereunder will be the requested amount of such Alternate Currency;
(b) an
existing Alternate Currency Advance is to be refunded, in whole or in part, with
an Advance denominated in the same Alternate Currency, the amount of the new
Advance shall be continued in the amount of the Alternate Currency so
refunded;
(c) an
existing Alternate Currency Advance denominated in an Alternate Currency is to
be converted, in whole or in part, to an Advance denominated in another
Alternate Currency, the amount of the new Advance shall be that amount of the
Alternate Currency of the new Advance which may be purchased, using the most
favorable spot exchange rate determined by Agent to be available to it for the
sale of Dollars for such other Alternate Currency at approximately 11:00 a.m.
(Detroit time) two (2) Business Days prior to the last day of the Interest
Period applicable to the existing Advance, with the Dollar Amount of the
existing Advance, or portion thereof being converted; and
(d) an
existing Alternate Currency Advance is to be converted, in whole or in part, to
a Revolving Advance which is not an Alternate Currency Advance, the amount of
the new Advance shall be the Dollar Amount of the existing Advance, or portion
thereof being converted (determined as aforesaid).”
22. Section
3.2(a) of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“(a) (i)
after giving effect to the Letter of Credit requested, the Letter of Credit
Obligations do not exceed the Letter of Credit Maximum Amount; and (ii) after
giving effect to the Letter of Credit requested, the Letter of Credit
Obligations on such date plus the aggregate Dollar Amount of all Revolving
Credit Advances and Swing Line Advances (including all Advances deemed disbursed
by Agent under Section 3.6(a) hereof in respect of Borrower’s Reimbursement
Obligations) hereunder requested or outstanding on such date do not exceed the
Revolving Credit Aggregate Commitment;”
23. Section
3.2 of the Credit Agreement hereby is amended by (i) redesignating the existing
Section 3.2(g) as Section 3.2(h), (ii) deleting the “and” at the end of
subsection 3.2(f) and (iii) adding the following new Section
3.2(g):
“(g) no
Revolving Credit Lender is an Impaired Lender, unless the Issuing Lender has
entered into arrangements satisfactory to it to eliminate the Issuing Lender’s
risk with respect to the participation in Letters of Credit by all such Impaired
Lenders, including creation of a cash collateral account or delivery of other
security to assure payment of such Impaired Lender's Percentage of all
outstanding Letter of Credit Obligations; and”
24. New
Section 3.6(e) is hereby added to the Credit Agreement as
follows:
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“(e) In
the event that any Lender becomes an Impaired Lender, the Issuing Lender may, at
its option, require that the Impaired Lender enter into arrangements
satisfactory to it to eliminate the Issuing Lender’s risk with respect to the
participation in Letters of Credit by such Impaired Lender, including creation
of a cash collateral account or delivery of other security to assure payment of
such Impaired Lender's Percentage of all outstanding Letter of Credit
Obligations.”
25. Section
5.14 of the Credit Agreement is hereby amended by (i) deleting the word “and” at
the end of paragraph (a) thereof, (ii) deleting the period at the end of
paragraph (b) thereof and substituting “;” in lieu thereof, and (iii) adding new
paragraphs (c) and (d) thereto immediately following paragraph (b) thereof, as
follows:
“(c) The
outstanding principal Dollar Amount of all Alternate Currency Advances shall not
exceed the Alternate Currency Sublimit; and
(d) If
any Lender is an Impaired Lender, the Swing Line Lender and/or Issuing Lender
has entered into arrangements satisfactory to it to eliminate the Swing Line
Lender’s and/or Issuing Lender’s risk, as applicable, with respect to the
participation in Swing Line Advances and Letters of Credit by all such Impaired
Lenders, including creation of a cash collateral account or delivery of other
security to assure payment of such Impaired Lender’s Weighted Percentage of all
outstanding Swing Line Advances and Letters of Credit; provided that the
foregoing condition shall not preclude the obligation of the Lenders to make
Revolving Credit Advances, or prohibit Borrower from obtaining Revolving Credit
Advances, to fund such cash collateral account.”
26. Section
7.1 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“7.1 Financial
Statements. Furnish to the Agent, with sufficient copies for
each Lender, all reports on Forms 10-K and 10-Q filed with the Securities and
Exchange Commission within five (5) days of such filing and in no event later
than fifty (50) days from quarter end for each Form 10-Q and ninety five (95)
days from year end for each Form 10-K.”
27. All
references in the Credit Agreement to Section 7.1(a) and/or Section 7.1(b)
hereby shall mean and refer to Section 7.1.
28. Section
7.2(e) of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“(e) No
later than December 31 of each Fiscal Year, projections for the Credit Parties
for the following Fiscal Year, on a quarterly basis and an annual basis,
including a balance sheet, income statement and statement of cash flows, as at
the end of each relevant period and for the period commencing at the beginning
of the Fiscal Year and ending on the last day of such relevant period, such
projections certified by a Responsible Officer of the Borrower as being based on
reasonable estimates and assumptions taking into account all facts and
information known (or reasonably available to any Credit Party) by a Responsible
Officer of the Borrower;”
29. Section
7.9(a) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“(a) Minimum
Fixed Charge Coverage Ratio. A ratio of (i) earnings before tax plus net
interest expense, plus depreciation/amortization (plus any non cash good will or
other intangible asset impairment charges ), plus non cash expenses related to
equity compensation, plus any non cash expense related to the Hedging Agreement
required to be entered into in connection with this Agreement or any other
Hedging Transaction ("EBITDA"), all for the preceding four (4) quarters, to (ii)
the current portion of long term debt and the current portion of capitalized
leases and maintenance capital expenditures (defined as 5% of trailing four (4)
quarters revenue), plus trailing four (4) quarters (a) net interest expense, (b)
income tax provision, (c) dividends and distributions to shareholders and (d)
cash redemptions and repurchases of stock, of at least 1.25 to 1.00 on
a
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quarterly
basis from the Effective Date until the quarter ending December 31, 2009 and
1.50 to 1.00 for every quarter thereafter. Notwithstanding GAAP and
notwithstanding any scheduled amortization or maturity of the Revolving
Credit, for purposes of this Section 7.9(a), the "current portion of long term
debt" with respect to the Revolving Credit shall be deemed to be an amount
equal to 10% of the total outstanding principal balance of the Revolving Credit
as of the end of the preceding fiscal quarter.”
30. Section
7.14 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“7.14 Accounts.
(a) With
respect to deposit accounts and securities accounts of any Credit Party
(collectively, “Deposit Accounts”) other than Deposit Accounts maintained
outside the United States (“Foreign Accounts”), maintain all such Deposit
Accounts (“Domestic Deposit Accounts”) with Agent, a Lender, an Affiliate of a
Lender, or any other financial institution reasonably acceptable to
Agent.
(b) With
respect to Domestic Deposit Accounts maintained by Borrower or any Guarantor
with any Lender (other than Agent), (i) cause to be executed and delivered an
Account Control Agreement in form and substance reasonably satisfactory to Agent
and (ii) take all other steps necessary, or in the reasonable opinion of Agent,
desirable to ensure that Agent has a perfected security interest in such
Domestic Deposit Account.
(c) With
respect to Foreign Accounts maintained by any Credit Party, (i) maintain
all Foreign Accounts with Agent, a Lender or an Affiliate of a Lender, or
Barclays or Bank of Scotland or any of their respective Affiliates, successors
and assigns, or any other financial institution reasonably acceptable to Agent,
(ii) not maintain cash or non-cash balances in Foreign Accounts in the aggregate
in excess of a Dollar Amount equal to Twenty Five Million Dollars ($25,000,000)
at any time, but measured as of the last day of each fiscal quarter,
(iii) have no obligation to provide Account Control Agreements for any
Foreign Accounts, (iv) with respect to any Foreign Accounts maintained by a
Credit Party other than Borrower or a Guarantor, have no obligation to xxxxx x
Xxxx on such Foreign Accounts, and (v) report the aggregate balance of all
Foreign Accounts on the quarterly Covenant Compliance Report.”
31. Section
7.16 of the Credit Agreement hereby is (a) modified by waiving the requirements
of Section 7.16 with respect to the real property locations listed on Schedule
7.16, Part A to this Amendment and (b) amended by adding the following at the
end of the existing Section 7.16 as a continuation thereof:
“From and
after June _17, 2009, the requirements of this Section 7.16 shall not apply with
respect to the real property locations listed on Schedule 7.16, Part
A. On or prior to June _17, 2009, Borrower has delivered to Agent the
Collateral Access Agreements listed on Schedule 7.16, Part B.”
32. Section
10.1(a) of the Credit Agreement hereby is amended and restated in its entirety
to read as follows:
“(a) All
payments to be made by Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise
provided herein, all payments made by the Borrower of principal, interest or
fees hereunder shall be made without setoff or counterclaim on the date
specified for payment under this Agreement and must be received by Agent not
later than 1:00 p.m. (Detroit, Michigan time) on the date such payment is
required or intended to be made in Dollars in immediately available funds to
Agent at Agent’s office located at 000 Xxxxxxxx Xxx. Xxxxxxx,
Xxxxxxxx 00000-0000, for the ratable benefit of the Revolving Credit
Lenders in the case of payments in respect of the Revolving Credit and any
Letter of Credit Obligations. Any payment received by the Agent after
1:00 p.m. (Detroit, Michigan time) shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. Upon receipt of each such payment, the Agent shall make
prompt payment to each applicable Lender, or, in respect of Eurodollar-based
Advances or
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Eurocurrency-based
Advances, such Lender’s Eurodollar Lending Office or Eurocurrency Lending Office
(as applicable), in like funds and currencies, of all amounts received by it for
the account of such Lender.”
33. Section
11.1 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“11.1 Reimbursement
of Prepayment Costs. If (i) Borrower makes any payment of
principal with respect to any Eurodollar-based Advance or Eurocurrency-based
Advance on any day other than the last day of the Interest Period applicable
thereto (whether voluntarily, pursuant to any mandatory provisions hereof, by
acceleration, or otherwise); (ii) Borrower converts or refunds (or attempts to
convert or refund) any such Advance on any day other than the last day of the
Interest Period applicable thereto (except as described in Section 2.5(e));
(iii) Borrower fails to borrow, refund or convert any Eurodollar-based Advance
or Eurocurrency-based Advance after notice has been given by Borrower to Agent
in accordance with the terms hereof requesting such Advance; or (iv) or if the
Borrower fails to make any payment of principal in respect of a Eurodollar-based
Advance or Eurocurrency-based Advance when due (other than at the end of the
applicable Interest Period), the Borrower shall reimburse Agent for itself
and/or on behalf of any Lender, as the case may be, within ten (10) Business
Days of written demand therefor for any resulting loss, cost or expense incurred
(excluding the loss of any Applicable Margin) by Agent and Lenders, as the case
may be, as a result thereof, including, without limitation, any such loss, cost
or expense incurred in obtaining, liquidating, employing or redeploying deposits
from third parties, whether or not Agent and Lenders, as the case may be, shall
have funded or committed to fund such Advance. Calculation
of any amounts payable to any Lender under this paragraph shall be made as
though such Lender shall have actually funded or committed to fund the relevant
Advance through the purchase of an underlying deposit in an amount equal to the
amount of such Advance and having a maturity comparable to the relevant Interest
Period; provided, however, that any Lender may fund any Eurodollar-based Advance
or Eurocurrency-based Advance, as the case may be, in any manner it deems fit
and the foregoing assumptions shall be utilized only for the purpose of the
calculation of amounts payable under this paragraph. Upon the written request of
Borrower, Agent and Lenders shall deliver to Borrower a certificate setting
forth the basis for determining such losses, costs and expenses, which
certificate shall be conclusively presumed correct, absent manifest
error.”
34. Section
11.2 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“11.2 Eurodollar/Eurocurrency
Lending Office. For any Eurodollar-based Advance, if Agent or
a Lender, as applicable, shall designate a Eurodollar Lending Office which
maintains books separate from those of the rest of Agent or such Lender, Agent
or such Lender, as the case may be, shall have the option of maintaining and
carrying the relevant Advance on the books of such Eurodollar Lending
Office. For any Eurocurrency-based Advance, if Agent or a Lender, as
applicable, shall designate a Eurocurrency Lending Office which maintains books
separate from those of the rest of Agent or such Lender, Agent or such Lender,
as the case may be, shall have the option of maintaining and carrying the
relevant Advance on the books of such Eurocurrency Lending Office.”
35. Section
11.3 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“11.3 Circumstances
Affecting Eurodollar-based Rate Availability. If, with respect
to any Interest Period or any Base Rate Advance then bearing interest based on
the Floating LIBOR Rate, Agent or the Majority Lenders (after consultation with
Agent) shall determine in good faith that, by reason of circumstances affecting
the foreign exchange and interbank markets generally, deposits in eurodollars,
in the applicable amounts are not being offered to the Agent or such Lenders for
such Interest Period or for the period necessary to determine the Floating LIBOR
Rate, then Agent shall forthwith give notice thereof to
Borrower. Thereafter, until Agent notifies Borrower that such
circumstances no longer exist: (i) the obligation of Lenders to make
Eurodollar-based Advances, and the right of Borrower to convert an Advance to or
refund an Advance as a Eurodollar-based Advance, as the case may be, shall be
suspended; (ii) effective upon the last day of each Interest Period related to
any existing Eurodollar-based Advance, such Eurodollar-based Advance shall
automatically be converted into a Base Rate Advance (without regard
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to
satisfaction of any conditions to conversion contained elsewhere herein); and
(iii) the Applicable Interest Rate for a Base Rate Advance shall be determined
without reference to clause (c) of the definition of Base Rate as set forth in
this Agreement.”
36. Section
11.4 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“11.4 Laws
Affecting Eurodollar-based Advance or Eurocurrency-based Advance
Availability. If, after the date of this Agreement, the
introduction of, or any change in, any applicable law, rule or regulation or in
the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance by any
of Lenders (or any of their respective Eurodollar Lending Offices or
Eurocurrency Lending Offices) with any request or directive (whether or not
having the force of law) of any such authority, shall make it unlawful or
impossible for any of Lenders (or any of their respective Eurodollar Lending
Offices or Eurocurrency Lending Offices) to honor its obligations hereunder to
make or maintain any Advance (x) with interest at the Eurodollar-based Rate or
the Eurocurrency-based Rate or (y) with interest calculated on the basis of the
Floating LIBOR Rate, such Lender shall forthwith give notice thereof to Borrower
and to Agent. Thereafter, (a) if such notice relates to
Eurodollar-based Advances or Eurocurrency-based Advances the obligations of the
applicable Lenders to make Eurodollar-based Advances and/or Eurocurrency-based
Advances and the right of Borrower to convert Advances into or refund a Advance
as a Eurodollar-based Advance or Eurocurrency-based Advance shall be suspended
and thereafter Borrower may select as applicable interest rates only those which
remain available and which are permitted to be selected hereunder; and if any of
Lenders may not lawfully continue to maintain a Advance to the end of the then
current Interest Period applicable thereto as a Eurodollar-based Advance or
Eurocurrency-based Advance, the applicable Advance shall immediately be
converted to a Base Rate Advance for the remainder of such Interest Period; and
(b) if such notice relates to any Advance with interest calculated with
reference to the Base Rate if such event makes it unlawful or impossible for
such Lender to charge interest at the Floating LIBOR Rate, the Base Rate shall
be determined without reference to clause (c) of the definition
thereof.”
37. Section
11.5 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“11.5 Increased
Cost of Eurodollar-based Advances or Eurocurrency-based
Advances. If, after the date of this Agreement, the adoption
or introduction of, or any change in, any applicable law, rule or regulation or
in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any of the Lenders (or any of their
respective Eurodollar Lending Offices or Eurocurrency Lending Offices) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency:
|
(a)
|
shall
subject any of the Lenders (or any of their respective Eurodollar Lending
Offices or Eurocurrency Lending Offices) to any tax, duty or other charge
with respect to any Advance or shall change the basis of taxation of
payments to any of the Lenders (or any of their respective Eurodollar
Lending Offices or Eurocurrency Lending Offices) of the principal of or
interest on any Advance or any other amounts due under this Agreement in
respect thereof (except for changes in the rate of tax on the income,
revenues or margin of any of the Lenders or any of their respective
Eurodollar Lending Offices or Eurocurrency Lending Offices);
or
|
|
(b)
|
shall
impose, modify or deem applicable any reserve (including, without
limitation, any imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any of Lenders
(or any of their respective Eurodollar Lending Offices or Eurocurrency
Lending Offices) or shall impose on any of Lenders (or any of their
respective Eurodollar Lending Offices or Eurocurrency Lending Offices) or
the foreign
|
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exchange
and interbank markets any other condition affecting any Eurodollar-based Advance
or Eurocurrency-based Advance;
and the
result of any of the foregoing is to: (i) increase the costs to any Lenders of
maintaining any part of the Obligations hereunder as a Eurodollar-based Advance,
a Eurocurrency-based Advance or as an Base Rate Advance bearing interest at the
Floating LIBOR Rate; or (ii) reduce the amount of any sum received or receivable
by any of Lenders under this Agreement in respect of a Eurodollar-based Advance,
a Eurocurrency-based Advance or an Base Rate Advance bearing interest at the
Floating LIBOR Rate, then such Lender shall promptly notify Agent, and Agent (or
such Lender, as aforesaid) shall promptly notify Borrower of such fact and
demand compensation therefor and, within fifteen (15) days after such notice,
Borrower agrees to pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction. Agent
will promptly notify Borrower of any event of which it has knowledge which will
entitle Lenders to compensation pursuant to this Section
11.5, or which will cause Borrower to incur additional liability under
Section
11.1 hereof; provided,
however,
that Agent shall incur no liability whatsoever to Lenders or Borrower in the
event it fails to do so. A certificate of Agent (or such Lender, if
applicable) setting forth the basis for determining such additional amount or
amounts necessary to compensate such Lender or Lenders shall accompany such
demand and shall be conclusively presumed to be correct save for manifest
error.
38. Section
13.12 of the Credit Agreement hereby is amended and restated in its entirety to
read as follows:
“13.12 Substitution
or Removal of Lenders.
If (1)
any Lender has become an Impaired Lender, (2) the obligation of any Lender to
make Eurodollar-based Advances or Eurocurrency-based Advances has been suspended
pursuant to Section 11.3 or 11.4, (3) any Lender has demanded compensation under
Section 3.4(c), 11.5 or 11.6 or (4) any Lender has not approved an amendment,
waiver or other modification of this Agreement, if such amendment or waiver has
been approved by the Majority Lenders and the consent of such Lender is
required (in
each case, an “Affected Lender”), then the Agent or the Borrower shall have the
right to make written demand on the Affected Lender (with a copy to the Borrower
in the case of a demand by the Agent or with a copy to the Agent in the case of
a demand by the Borrower) to assign and the Affected Lender shall assign, to one
or more financial institutions that comply with the provisions of Section 13.8
hereof (the “Purchasing Lender” or “Purchasing Lenders”) to purchase the
Advances of the Revolving Credit and the Swing Line, of such Affected Lender
(including, without limitation, its participating interests in outstanding Swing
Line Advances and Letters of Credit) and assume the commitment of the Affected
Lender to extend credit under the Revolving Credit (including without limitation
its obligation to purchase participation interests in Swing Line Advances and
Letters of Credit) under this Agreement. The Affected Lender shall be
obligated to sell its Advances of the Revolving Credit and the Swing Line, and
assign its commitment to extend credit under the Revolving Credit (including
without limitation its obligations to purchase participations in Swing Line
Advances and Letters of Credit) to such Purchasing Lender or Purchasing Lenders
within ten (10) days after receiving notice from the Borrower requiring it to do
so, at an aggregate price equal to the outstanding principal amount thereof,
plus unpaid interest accrued thereon up to but excluding the date of the sale.
In connection with any such sale, and as a condition thereof, the Borrower shall
pay to the Affected Lender all fees accrued for its account hereunder to but
excluding the date of such sale, plus, if demanded by the Affected Lender within
ten (10) Business Days after such sale, (i) the amount of any compensation which
would be due to the Affected Lender under Section 11.1 if the Borrower had
prepaid the outstanding Eurodollar-based Advances or Eurocurrency-based Advances
of the Affected Lender on the date of such sale and (ii) any additional
compensation accrued for its account under Sections 3.4(c), 11.5 and 11.6 to but
excluding said date. Upon such sale, the Purchasing Lender or
Purchasing Lenders shall assume the Affected Lender’s commitment, and the
Affected Lender shall be released from its obligations hereunder to a
corresponding extent (except with respect to Section 13.11 hereof). If any
Purchasing Lender is not already one of the
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Lenders,
the Affected Lender, as assignor, such Purchasing Lender, as assignee, the
Borrower and the Agent, shall enter into an Assignment Agreement pursuant to
Section 13.8 hereof, whereupon such Purchasing Lender shall be a Lender party to
this Agreement, shall be deemed to be an assignee hereunder and shall have all
the rights and obligations of a Lender with a Revolving Credit Percentage equal
to its ratable share of the then applicable Revolving Credit Aggregate
Commitment. In connection with any assignment pursuant to this Section 13.12,
the Borrower or the Purchasing Lender shall pay to the Agent the administrative
fee for processing such assignment referred to in Section 13.8.”
39. Schedule
I to the Credit Agreement is hereby replaced with Schedule I attached
hereto.
40. The
Credit Agreement is hereby amended by adding Schedule 7.16 thereto, which shall
be in the form of Schedule 7.16 attached hereto.
41. Exhibit A
to the Credit Agreement is hereby replaced with Exhibit A attached
hereto.
42. Exhibit L
to the Credit Agreement is hereby replaced with Exhibit L attached
hereto.
43. No course
of dealing on the part of Agent, any Lender or any of their officers, nor any
failure or delay in the exercise of any right by Agent or any Lender, shall
operate as a waiver thereof, and any single or partial exercise of any such
right shall not preclude any later exercise of any such
right. Agent’s or any Lender’s failure at any time to require strict
performance by Borrower of any provision shall not affect any right of Agent or
any Lender thereafter to demand strict compliance and
performance. Any suspension or waiver of a right must be in writing
signed by an officer of Agent and the requisite Lenders (in accordance with the
Credit Agreement).
44. Unless
otherwise defined, all initially capitalized terms in this Amendment shall be as
defined in the Credit Agreement. The Credit Agreement, as amended
hereby, shall be and remains in full force and effect in accordance with its
terms and hereby is ratified and confirmed in all respects. Except as
expressly set forth herein, the execution, delivery, and performance of this
Amendment shall not operate as a waiver of, or as an amendment of, any right,
power, or remedy of Agent or any Lender under the Credit Agreement, as in effect
prior to the date hereof.
45. Borrower
represents and warrants that, after giving effect to this Amendment, (a) each of
the representations and warranties contained in the Credit Agreement and in each
of the other Loan Documents is true and correct in all material respects as of
the date of this Amendment as if made on and as of such date (other than any
representation or warranty that expressly speaks only as of a different date),
and (b) no Event of Default exists as of the date of this
Amendment.
46. As a
condition to the effectiveness of this Amendment, Agent shall have received, in
form and substance satisfactory to Agent, the following:
(a) this
Amendment, duly executed by Borrower;
(b) a
Certificate of the Secretary of Borrower with respect to incumbency and
resolutions authorizing the execution and delivery of this
Amendment;
(c) an
amendment fee payable to each Lender who consents to and signs this Amendment,
equal to 10bps of such Lender’s Revolving Credit Commitment
Amount;
(d) that
certain Fee Letter between Borrower and Agent, duly executed by
Borrower;
(e) all
reasonable attorneys’ fees and expenses incurred through the date of this
Amendment, which may be debited from any of Borrower's accounts;
and
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(f) such
other documents, and completion of such other matters, as Agent may reasonably
deem necessary or appropriate.
47. This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
instrument.
- 16
-
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the first
date above written.
RACKSPACE
US, INC.
By:
/s/ Xxxxx X.
Xxxxxxxxxxx
Its: Chief Financial Officer, Senior Vice
President, and Treasurer
COMERICA
BANK,
as
Administrative Agent
By:
/s/ Xxxxx
Xxx
Its:
Vice
President
COMERICA
BANK,
as a
Lender, as Issuing Lender
and as
Swing Line Lender
By:
/s/ Xxxxx
Xxx
Its:
Vice
President
[Signature Page to Fifth Amendment to
Amended and Restated Revolving Credit Agreement]
[Signatures Continued Next
Page]
JPMORGAN
CHASE BANK, N.A.,
as a
Lender
By: /s/ Xxxxxxxx
Xxxxxxx
Its:
Senior Vice
President
JPMORGAN
CHASE BANK, N.A.,
as a
Syndication Agent
By:
/s/ Xxxxxxxx
Xxxxxxx
Its:
Senior Vice
President
[Signature Page to Fifth Amendment to
Amended and Restated Revolving Credit Agreement]
[Signatures Continued Next
Page]
WACHOVIA
BANK, N.A.,
as a
Lender
By: /s/ Xxxxx
Xxxxx
Its:
Senior Vice
President
WACHOVIA
BANK, N.A.,
as a
Syndication Agent
By: /s/ Xxxxx
Xxxxx
Its:
Senior Vice
President
[Signature Page to Fifth Amendment to
Amended and Restated Revolving Credit Agreement]
[Signatures Continued Next
Page]
THE FROST
NATIONAL BANK, a national banking association,
as a
Lender
By: /s/ Xxxxx
Xxxxxxxx
Its: Market
President
[Signature Page to Fifth Amendment to
Amended and Restated Revolving Credit Agreement]
[Signatures Continued Next
Page]
BANK OF
AMERICA, N.A.,
as a
Lender
By: /s/ Xxxxxx Xxxxxxxxx
Madan
Its: Senior Vice
President
[Signature Page to Fifth Amendment to
Amended and Restated Revolving Credit Agreement]
Schedule
1.1
Applicable
Margin Grid
Revolving Credit
Facility
(basis
points per annum)
|
Basis
for Pricing
|
Level
I
|
Level
II
|
Level
III
|
Level
IV
|
|
Consolidated
Funded Debt to EBITDA*
|
<0.75
to 1.00
|
≥
0.75 to 1.00
but
< 1.50 to 1.00
|
≥
1.50 to 1.00
but
< 2.25 to 1.00
|
≥
2.25 to 1.00
|
|
Eurodollar
Margin/Eurocurrency Margin
|
67.5
bps
|
105
bps
|
130
bps
|
155
bps
|
|
Base
Rate Margin
|
0.00
|
0.00
|
0.00
|
5
bps
|
|
Revolving
Credit Facility Fee
|
20
bps
|
20
bps
|
20
bps
|
20
bps
|
|
Letter
of Credit Fees
|
67.5
bps
|
105
bps
|
130
bps
|
155
bps
|
*
Definitions as set forth in the Credit Agreement.
EXHIBIT
A
FORM OF REQUEST FOR
REVOLVING CREDIT ADVANCE
No.
_____________________ Dated: ________,
20__
TO: Comerica
Bank (“Agent”)
|
RE:
|
Amended
and Restated Revolving Credit Agreement dated as of August 31, 2007 (as
amended, restated or otherwise modified from time to time, the “Credit
Agreement”) by and among the financial institutions from time to time
signatory thereto (individually a “Lender,” and any and all such financial
institutions collectively the “Lenders”), Comerica Bank, as Administrative
Agent for the Lenders (in such capacity, the “Agent”) and Rackspace US,
Inc. (“Borrower”).
|
Pursuant
to the terms and conditions of the Credit Agreement, Borrower hereby requests an
Advance from Lenders, as described herein:
|
(a)
|
Date
of Advance:
|
|
(b)
|
o (check if
applicable)
|
This
Advance is or includes a whole or partial refunding/conversion of:
Advance
No(s):
|
(c)
|
Type
of Advance (check only one):
|
o Base Rate
Advance
o Eurodollar-based
Advance
o Eurocurrency-based
Advance
|
(d)
|
Amount
of Advance:
|
$_____________________
|
(e)
|
Interest
Period (applicable to Eurodollar-based Advances or Eurocurrency-based
Advances)
|
________
months (insert 1, 2 or 3)
|
(f)
|
Currency
of Advance
|
o Dollars
o Euros
o Pounds
Sterling
|
(g)
|
Disbursement
Instructions
|
o Comerica Bank
Account No. _________________
o Other:
Borrower
certifies to the matters specified in Section 2.3(f) of the Credit
Agreement.
Capitalized
terms used herein, except as defined to the contrary, have the meanings given
them in the Credit Agreement.
RACKSPACE
US, INC.
By:
Its:
Agent
Approval:
EXHIBIT
L
FORM OF COVENANT COMPLIANCE
REPORT
TO: Comerica
Bank, as
Agent Date: ____________,
20__
RE: Amended
and Restated Revolving Credit Agreement dated as of August 31, 2007 (as amended,
restated or otherwise modified from time to time, the “Credit Agreement”) by and
among the financial institutions from time to time signatory thereto
(individually a “Lender,” and any and all such financial institutions
collectively the “Lenders”), Comerica Bank, as Administrative Agent for the
Lenders (in such capacity, the “Agent”) and Rackspace US, Inc.
(“Borrower”).
This
Covenant Compliance Report (“Report”) is furnished pursuant to Section 7.2(a) of
the Credit Agreement and sets forth various information as of ______________,
20___ (the “Computation Date”).
Please
indicate compliance status by circling Yes/No under “Complies”
column.
|
Reporting Covenant
|
Required
|
Complies
|
||
|
10-K
and 10-Q
|
Within
5 days of filing with SEC
|
Yes
|
No
|
|
|
Compliance
Cert.; Windcrest Property Budget
|
Quarterly
within 45 days
|
Yes
|
No
|
|
|
Financial
Projections
|
Annually
by 12/31
|
Yes
|
No
|
|
|
Cash
balance maintained outside the U.S.
|
$________________
|
Yes
|
No
|
|
|
Financial Covenant
|
Required
|
Actual
|
Complies
|
|
|
Measured
on a Quarterly Basis:
|
||||
|
Minimum
Fixed Charge Coverage Ratio
|
1.25:1.00*
|
_____:1.00
|
Yes
|
No
|
|
Maximum
Funded Debt to EBITDA
|
3.00:1.00
|
_____:1.00
|
Yes
|
No
|
|
Maximum
cash balance outside the U.S.
|
$25,000,000
|
$
|
Yes
|
No
|
|
* for
the quarters ending on and prior to 12/31/09; 1.50:1.00 with respect to
all subsequent
quarters
|
||||
The
undersigned hereby certifies that:
A. To
the best of my knowledge, all of the information set forth in this Report (and
in any Schedule attached hereto) is true and correct in all material
respects.
B. To
the best of my knowledge, the representation and warranties of the Credit
Parties contained in the Credit Agreement and in the Loan Documents are true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and at the date hereof, except
to the extent that such representations and warranties expressly relate to an
earlier specific date, in which case such representations and warranties were
true and correct in all material respects as of the date when made.
C. I
have reviewed the Credit Agreement and this Report is based on an examination
sufficient to assure that this Report is accurate.
D. To
the best of my knowledge, except as stated in Schedule 1 hereto (which shall
describe any existing Default or Event of Default and the notice and period of
existence thereof and any action taken with respect thereto or contemplated to
be taken by Borrower or any other Credit Party), no Default or Event of Default
has occurred and is continuing on the date of this Report.
Capitalized
terms used in this Report and in the Schedules hereto, unless specifically
defined to the contrary, have the meanings given to them in the Credit
Agreement.
IN
WITNESS WHEREOF, Borrower has caused this Report to be executed and delivered as
of the ______ day of __________________, ____.
RACKSPACE
US, INC.
By:
Its:
Schedule 1 to Covenant
Compliance Report
|
|
|
Schedule
7.16
Collateral
Access Agreements
|
Part
A – Properties for which compliance is waived
Slicehost
Office Space
0000
Xxxxx Xxxxxx Xx
Xx.
Xxxxx, XX 00000
Rackspace
Austin Office Space
0000
Xxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Mailtrust
Office Space
Xxxxxxxxxx
Xxxx Xxxxx XX, Xxxxx #0
000
Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx,
XX 00000
|
|
|
Part
B – Properties for which compliance is completed
|
|
|
Rackspace
San Antonio Office Space, Datapoint
0000
Xxxxxxxxx Xxxxx
Xxx
Xxxxxxx, XX 00000
|
|
|
Rackspace
San Antonio Office Space
Castle,
0000 Xxxxxx Xxxx
Xxx
Xxxxxxx, XX 00000
|
|
|
Rackspace
San Antonio Datacenter, Weston Center
000
Xxxx Xxxxx Xxxxxx
Xxx
Xxxxxxx, XX 00000
|
|
|
Jungledisk
Office Space
0000
Xxxxxxxxx Xxxxxxxxx, Xxxx 000
Xxxxxxx,
Xxxxxxx 00000
|
|
|
Slicehost
Data Center
000
Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xx.
Xxxxx, XX 00000
|
|
|
Rackspace
Grapevine Data Center
000
Xxxxxxxxxx Xxxx.
Xxxxxxxxx,
XX 00000
|
|
|
Rackspace
Herndon Data Center
000
Xxx Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
|
|
Rackspace
Herndon Data Center 2
00000
Xxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
|
Rackspace
San Antonio Datacenter
0000
Xxxxxxx Xxxxxx Xxxxx
Xxx
Xxxxxxx, XX 00000
Second
Slicehost DC
Switch
and Data
000 Xxxxx
Xxxxxx Xxxx., Xxxxx 000
Xx.
Xxxxx, XX 00000
