(x) The Term B Loans shall be entitled to the same provisions for voluntary prepayments as the Existing Term Loans, as set forth in Section 2.05(a) of the Credit Agreement, and each prepayment of the outstanding Term Loans (including the Term B Loans) pursuant to Section 2.05(a)(i) of the Credit Agreement shall be applied (x) to one or more of the Term A-1 Facility, the Term A-2 Facility and the Term B Facility as the Borrower directs and (y) to the then remaining principal repayment installments of the Term Facilities as the Borrower directs, and each prepayment of Term Loans shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities.
(y) The Term B Facility may be prepaid at any time, in whole or in part, without premium or penalty, except, on or prior to the sixth month anniversary of the Second Amendment Effective Date, subject to the terms and conditions of Section 2.05(c) of the Credit Agreement.
(f) Financial Covenant. The Term B Facility shall not have the benefit of, or any rights with respect to, the financial covenants as set forth in Section 7.11 of the Credit Agreement (including, without limitation, as to amendments, modifications and waivers).
(g) Use of Proceeds. The Borrower will use the proceeds of the Term B Loans, after the Second Amendment Effective Date, (x) to repurchase in a tender offer, redemption, defeasance, satisfaction and discharge or other repayment (the “Note Refinancing”) all or a portion of the Borrower’s outstanding 3.875% Senior Notes due 2018 (the “Existing Notes”), and (y) to pay fees and expenses in connection with the foregoing and the other transactions contemplated herein and, to the extent that any such proceeds are remaining after giving effect to the transactions, the Borrower may use such proceeds for general corporate and working capital purposes.
SECTION 3. Conditions Precedent to the Effectiveness of this Agreement. This Agreement shall become effective and the Term B Commitment of each Term B Lender shall be subject to the satisfaction or waiver of the following conditions precedent (the date on which such conditions precedent are so satisfied or waived, the “Second Amendment Effective Date”):
(a) the Administrative Agent’s receipt of executed counterparts of this Agreement executed by each Loan Party party hereto and the Term B Lenders, each of which shall be originals, electronic copies or facsimiles unless otherwise specified;
(b) the Administrative Agent’s receipt of a favorable opinion of (A) Cravath, Swaine & Moore LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and (B) Dinsmore & Shohl, as special Kentucky counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(c) the Borrower shall have paid to the Administrative Agent all reasonable and documented out-of-pocket costs and expenses (but including, in any event, without limitation, the reasonable fees, charges and disbursements of Cahill Gordon & Reindel LLP, counsel for the Administrative Agent), of the Administrative Agent;
(d) the Borrower shall have paid to the Administrative Agent, for the ratable account of the Arrangers, in immediately available funds, all compensation and other amounts then due and payable pursuant to the Engagement Letter in connection with the funding of the Term B Facility;
(e) the Borrower shall have delivered to the Administrative Agent a certificate of the Borrower dated as of the Second Amendment Effective Date signed by a Responsible Officer certifying that, before and after giving effect to this Agreement, the representations and warranties contained in Article V of the Credit Agreement and the other Loan Documents are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or in all respects, as the case may be) as of such earlier date;
(f) no Event of Default has occurred and is continuing on and as of the Second Amendment Effective Date and immediately after giving effect to the Term B Commitments, the extension of Term B Loans thereunder, and the application of the proceeds therefrom;
(g) the Borrower shall have delivered to the Administrative Agent a Committed Loan Notice for the Term B Loans in accordance with Section 2.02 of the Credit Agreement; and
(h) the trustee of the Existing Notes shall have delivered to the holders of the Existing Notes a notice of redemption in connection with the Note Refinancing.
SECTION 4. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or electronic means, including by e-mail with a “pdf” copy attached, of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement. The Administrative Agent may also require that any such documents and signatures delivered by telecopier be confirmed by a hard copy signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier or other electronic format.
SECTION 5. Governing Law, Jurisdiction and Waiver of Right to Trial by Jury. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The jurisdiction and waiver of right to trial by jury provisions in Sections 10.14 and 10.15 of the Credit Agreement are incorporated herein by reference mutatis mutandis.
SECTION 6. Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 7. Reaffirmation. Each Loan Party hereby expressly acknowledges the terms of this Agreement and reaffirms, as of the date hereof, (i) its obligations under the Loan Documents to which it is a party and (ii) its guarantee of the Obligations pursuant to the Guaranty, as applicable, and its grant of Liens on the Collateral to secure the Obligations pursuant to the Collateral Documents, with all such Liens continuing in full force and effect immediately after giving effect to this Agreement.
SECTION 8. Effect of Amendment. This Agreement shall not constitute a novation of the Credit Agreement or any of the Loan Documents. Except as expressly set forth herein, this Agreement (i) shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Swing Line Lenders or the L/C Issuers, in each case under the Credit Agreement or any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of either such agreement or any other Loan Document. Each and every term, condition, obligation, covenant and agreement contained in the Credit Agreement or any other Loan Document is hereby ratified and re-affirmed in all respects and shall continue in full force and effect.
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