FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.47
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT
AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the
13th day of November, 2009 (this “Amendment”), is entered into among XXXXXX &
XXXXX CORPORATION, a Tennessee corporation (the “Borrower”), the Lenders (as defined in
the hereinafter defined Credit Agreement) party hereto, and Wachovia Bank, National Association,
as Administrative Agent, Swing Bank and Issuing Bank (“Wachovia”).
RECITALS
A. The Borrower, the Lenders and Wachovia are parties to that certain Credit
Agreement, dated as of October 16, 2007 (as amended from time to time, the “Credit
Agreement”), providing for a revolving credit facility in the aggregate principal
amount of
$750,000,000. Capitalized terms used herein without definition shall have the meanings given
to them in the Credit Agreement.
B. The Borrower has requested certain amendments to the Credit Agreement and the
Administrative Agent and the Majority Lenders have agreed to make such amendments on the
terms and conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
1.1 Amendments to Section 1.1 (Defined Terms).
(a) The following definitions are hereby added to Section 1.1 of the Credit
Agreement in appropriate alphabetical order:
“First Amendment” shall mean the First Amendment to Second Amended and
Restated Credit Agreement, dated as of November 13, 2009, among the Borrower, the
Lenders party thereto, and the Administrative Agent.
“First Amendment Effective Date” shall mean the date upon which the
conditions to the effectiveness of the First Amendment set forth in Article II
thereof are satisfied or waived in accordance with their terms.
(b) The following definitions in Section 1.1 of the Credit Agreement are hereby
amended and restated in their entirety as follows:
“Senior Notes” shall mean, collectively, the Senior Notes (2013) and the Senior Notes
(2021), and any other senior unsecured notes issued by the Borrower or any replacement, renewal,
refinancing or extension of the existing Senior Notes that are on terms and conditions no less
favorable to the Lenders, as reasonably determined by the Administrative Agent, than the terms of
the Senior Notes (2013).
“Senior Notes (2013)” shall mean the 7.25% Notes due June 1, 2013 issued by the
Borrower on May 27, 2003, in an aggregate principal amount of $175,000,000, pursuant to the terms
and conditions of the 1998 Indenture.
“Senior Notes (2021)” shall mean the 5.625% Notes due November 15, 2021 issued by the
Borrower on November 23, 2009, in an aggregate principal amount of $250,000,000, pursuant to the
terms and conditions of the 1998 Indenture.
1.2 Amendments to Section 7.3(b)(Restricted Payments). Section 7.3(b) of the
Credit Agreement is hereby amended and restated in its entirety as follows.
“(b) Neither the Borrower nor any Domestic T&B Company shall, directly or indirectly,
make any payment, prior to the scheduled maturity thereof, on account of any Funded Debt of
any Domestic T&B Company other than the Obligations, except that, so long as no Default or
Event of Default then exists or would be caused thereby, the Borrower may purchase, redeem,
or otherwise acquire or retire all or any portion of the Senior Notes from the holders
thereof.
1.3 Amendments to Section 7.9 (Negative Pledge). Section 7.9 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
“Section 7.9 Limitation on Certain Restrictions.
The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, enter into, assume or become subject to any agreement with any Person that
prohibits or restricts or limits the ability of the Borrower or any of its Subsidiaries to
repay the Obligations, or to create, incur, pledge, or suffer to exist any Lien upon any of
its respective assets (other than (i) agreements governing any Permitted Lien and (ii) the
Indentures under which the Borrower or any of its Subsidiaries may issue Senior Notes), or
restricts the ability of any Subsidiary of the Borrower to pay
Dividends to the Borrower.”
ARTICLE II
CONDITIONS OF EFFECTIVENESS
This First Amendment shall become effective as of the date (the “First Amendment Effective
Date”) when, and only when, each of the following conditions precedent shall have been
satisfied:
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(a) The Administrative Agent shall have received, dated as of the First Amendment
Effective Date, an executed counterpart hereof from each of the Borrower and the Majority
Lenders;
(b) The supplemental indenture and other agreements pursuant to which the Borrower
shall issue the Senior Notes (2021) shall be in form and substance reasonably satisfactory to
the Administrative Agent;
(c) Since December 31, 2008, there has occurred no event which has had or which
could reasonably be expected to have a Materially Adverse Effect; and
(d) The Borrower shall have paid all reasonable out-of-pocket costs and expenses of
the Administrative Agent in connection with the preparation, negotiation, execution and
delivery of this First Amendment (including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Administrative Agent with respect thereto).
ARTICLE III
CONFIRMATION OF REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants, on and as of the First Amendment Effective Date,
that (i) the representations and warranties contained in the Credit Agreement and the other Credit
Documents are true and correct in all material respects on and as of such date, both immediately
before and after giving effect to the First Amendment (except to the extent any such representation
or warranty is expressly stated to have been made as of a specific date, in which case such
representation or warranty shall be true and correct in all material respects as of such date),
(ii) this First Amendment has been duly authorized, executed and delivered by the Borrower and
constitutes the legal, valid and binding obligation of the Borrower enforceable against it in
accordance with its terms and (iii) no Default or Event of Default shall have occurred and be
continuing on the First Amendment Effective Date, both immediately before and after giving effect
to the First Amendment.
ARTICLE IV
ACKNOWLEDGEMENT AND CONFIRMATION OF THE BORROWER
The Borrower hereby confirms and agrees that, after giving effect to this First Amendment,
the Credit Agreement and the other Credit Documents remain in full force and effect and
enforceable against the Borrower in accordance with their respective terms and shall not be
discharged, diminished, limited or otherwise affected in any respect, and represents and warrants
to the Lenders that it has no knowledge of any claims, counterclaims, offsets, or defenses to or
with respect to its obligations under the Credit Documents, or if the Borrower has any such
claims, counterclaims, offsets, or defenses to the Credit Documents or any transaction related to
the Credit Documents, the same are hereby waived, relinquished, and released in consideration of
the execution of this First Amendment. This acknowledgement and confirmation by the Borrower is
made and delivered to induce the Administrative Agent and the Lenders to enter into this First
Amendment, and the Borrower acknowledges that the
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| Administrative Agent and the Lenders would not enter into this First Amendment in the absence of the acknowledgement and confirmation contained herein. |
ARTICLE V
MISCELLANEOUS
5.1 Governing Law. This First Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
5.2 Full Force and Effect. Except as expressly amended hereby, the Credit
Agreement shall continue in full force and effect in accordance with the provisions thereof on
the date hereof. As used in the Credit Agreement, “hereinafter,” “hereto,” “hereof,” and words
of similar import shall, unless the context otherwise requires, mean the Credit Agreement after
amendment by this First Amendment. Any reference to the Credit Agreement or any of the other
Credit Documents herein or in any such documents shall refer to the Credit Agreement and
Credit Documents as amended hereby. This First Amendment is limited as specified and shall
not constitute or be deemed to constitute an amendment, modification or waiver of any
provision of the Credit Agreement except as expressly set forth herein. This First Amendment shall
constitute a Loan Document under the terms of the Credit Agreement.
5.3 Expenses. The Borrower agrees on demand (i) to pay all reasonable fees and
expenses of counsel to the Administrative Agent, and (ii) to reimburse the Administrative
Agent for all reasonable out-of-pocket costs and expenses, in each case, in connection with the
preparation, negotiation, execution and delivery of this First Amendment and the other Credit
Documents delivered in connection herewith.
5.4 Severability. To the extent any provision of this First Amendment is prohibited
by or invalid under the applicable law of any jurisdiction, such provision shall be
ineffective only to the extent of such prohibition or invalidity and only in any such jurisdiction, without
prohibiting or invalidating such provision in any other jurisdiction or the remaining
provisions of this First Amendment in any jurisdiction.
5.5 Successors and Assigns. This First Amendment shall be binding upon, inure to
the benefit of and be enforceable by the respective successors and permitted assigns of the
parties hereto.
5.6 Construction. The headings of the various sections and subsections of this First
Amendment have been inserted for convenience only and shall not in any way affect the
meaning or construction of any of the provisions hereof.
5.7 Counterparts. This First Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together constitute one
and the same instrument. Delivery of an executed signature page of this First Amendment by facsimile
transmission or by electronic mail shall be effective as delivery of a manually executed
counterpart hereof.
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