WHEREAS, Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner and Smith, JPMorgan Chase Bank, N.A., Barclays Bank PLC, Wells Fargo Securities, LLC and HSBC Securities USA, N.A. (collectively, the Lead Arrangers) shall act as joint lead arrangers and bookrunners with respect to this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and receipt of all of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms not otherwise defined in this Amendment shall have the same meanings as specified in the Existing Credit Agreement.
SECTION 2. Amendments to the Existing Credit Agreement. Pursuant to Section 10.01 of the Existing Credit Agreement, and subject to the satisfaction of the conditions precedent set forth in Section 3 hereof, effective on and as of the Amendment No. 5 Effective Date, the Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example:
stricken text), and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages attached as Annex B hereto.
SECTION 3. Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the Amendment No. 5 Effective Date) when each of the following conditions shall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received (i) counterparts of this Amendment signed by the Parent Borrower, the Guarantors, the Replacement Lender, the Administrative Agent, and (ii) Lender Addenda signed by the Consenting Term B-1 Euro Lenders and the Consenting Term B-2 Euro Lenders.
(b) The Administrative Agent shall have received (x) the legal opinion of Ropes & Gray LLP, counsel to the Loan Parties and (y) the legal opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., North Carolina counsel to the Loan Parties, in each case, dated as of the Amendment No. 5 Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received (i) copies of each Organization Document for the Parent Borrower and each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 5 Effective Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of the Parent Borrower and each Guarantor executing this Amendment; (iii) resolutions of the Board of Directors or similar governing body of the Parent Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment and certified as of the Amendment No. 5 Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and effect without modification or amendment and (iv) if available, a good standing certificate from the applicable Governmental Authority of the Parent Borrowers and each Guarantors jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Amendment No. 5 Effective Date.
(d) The Administrative Agent and the Lead Arrangers shall have been paid all fees payable to the Administrative Agent and the Lead Arrangers, respectively, on the Amendment No. 5 Effective Date and, to the extent invoiced at least two (2) Business Days prior to the Amendment No. 5 Effective Date (or as otherwise reasonably agreed by the Parent Borrower), out-of-pocket expenses required to be paid by the Parent Borrower in connection with this Amendment, including the Attorney Costs of Cahill Gordon & Reindel LLP, in accordance with Section 10.04 of the Existing Credit Agreement.