THIS THIRD AMENDMENT (this “Agreement”) is dated as of September 16, 2016 by and among JACK IN THE BOX INC., a Delaware corporation (the “Borrower”), certain Domestic Subsidiaries of the Borrower party hereto (such subsidiaries, collectively, the “Guarantors”, and each, a “Guarantor”), the banks and other financial institutions or entities party hereto (the “Consenting Lenders”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).

 

 

The Borrower, the banks and other financial institutions party thereto (the “Existing Lenders”) and the Administrative Agent are parties to that certain Second Amended and Restated Credit Agreement dated as of March 19, 2014 (as amended by that certain First Amendment and Waiver dated as of November 21, 2014, the Waiver, Joinder and Second Amendment dated as of July 1, 2015 and as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), pursuant to which the Existing Lenders have extended certain credit facilities to the Borrower.  All capitalized undefined terms used in this Agreement (including, without limitation, in the introductory paragraph and this Statement of Purpose hereof) shall have the meanings assigned thereto in the Credit Agreement.

 

The Borrower has requested that the Consenting Lenders (including without limitation the Existing Lenders) agree to amend the Credit Agreement as more specifically set forth herein.  Subject to the terms and conditions set forth herein, the Administrative Agent and each of the Consenting Lenders has agreed to grant such requests of the Borrower.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Without limiting the generality of the provisions of the last paragraph of Section 13.3 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 3, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed effective date hereof specifying its objection thereto.

 

 

 

 

 

 

 

 

[Signature Pages Follow]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by their respective duly authorized officers, all as of the day and year first written above.

 

	GUARANTORS:
	JBX GENERAL PARTNER LLC, as a Guarantor
	By:	Jack in the Box Inc., as sole member
		By:	/s/ Paul D. Melancon
		Name:	Paul D. Melancon
		Title:	Senior Vice President Finance, Controller and Treasurer

	JBX LIMITED PARTNER LLC, as a Guarantor
	By:	Jack in the Box Inc., as sole member
		By:	/s/ Paul D. Melancon
		Name:	Paul D. Melancon
		Title:	Senior Vice President Finance, Controller and Treasurer

	JACK IN THE BOX EASTERN DIVISION L.P., as a Guarantor
	By:	JBX General Partner LLC, as general partner
		By:	Jack in the Box Inc., as sole member
			By:	/s/ Paul D. Melancon
			Name:	Paul D. Melancon
			Title:	Senior Vice President Finance, Controller and Treasurer

	QDOBA RESTAURANT CORPORATION, as a Guarantor
	By:	/s/ Keith M. Guilbault
	Name:	Keith M. Guilbault
	Title:	President and Treasurer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Jack in the Box Inc.

Third Amendment (2016)

Signature Page

 

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	REGIONS BANK, as a Consenting Lender
	By:	/s/ Robert Daniel
	Name:	Robert Daniel
	Title:	Managing Director & Group Head

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

	CITY NATIONAL BANK, as a Consenting Lender
	By:	/s/ Jeanine Smith
	Name:	Jeanine Smith
	Title:	Senior Vice President

 

 

	CRÉDIT INDUSTRIEL ET COMMERCIAL, as a Consenting Lender
	By:	/s/ Clifford Abramsky
	Name:	Clifford Abramsky
	Title:	Managing Director
	By:	/s/ Garry Weiss
	Name:	Garry Weiss
	Title:	Managing Director

 

 

Jack in the Box Inc.

 

 

 

 

 

 

 

 

 

 

 

INCREASING TERM LOAN COMMITMENTS

OUTSTANDING TERM LOAN AMOUNTS (AFTER GIVING EFFECT TO THE THIRD ADVANCE ON THE EFFECTIVE DATE OF THE THIRD AMENDMENT)

Amended Credit Agreement

[See attached]

 

 

 

 

 

 

 

 

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

dated as of March 19, 2014

 

by and among

 

JACK IN THE BOX INC.,

as Borrower,

 

the Lenders referred to herein,

as Lenders,

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Swingline Lender and Issuing Lender,

 

 

and

each as a Documentation Agent

WELLS FARGO SECURITIES, LLC,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

as Joint Lead Arrangers and Joint Lead Bookrunners

EXHIBITS AND SCHEDULES

 

 

 

 

 

 

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 19, 2014, by and among JACK IN THE BOX INC., a Delaware corporation, as Borrower, the lenders who are or may become a party to this Agreement, as Lenders and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the Lenders.

 

 

The Borrower has requested, and the Lenders have agreed, to extend certain credit facilities to the Borrower on the terms and conditions of this Agreement.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, such parties hereby agree as follows:

 

 

“Acquisition” means a purchase or other acquisition, direct or indirect, by any Person of all or substantially all of the assets or all or substantially all of the business of any other Person or a line of business of any other Person (whether by acquisition of Capital Stock, assets, permitted merger or any combination thereof); provided that any purchase of restaurant units permitted under Section 11.14 that does not constitute a purchase or acquisition of, or Investment in, another Person, shall not be deemed to be an Acquisition.

 

“Administrative Agent” means Wells Fargo, in its capacity as Administrative Agent hereunder, and any successor thereto appointed pursuant to Section 13.6.

 

“Administrative Agent’s Fee Letter” means the separate fee letter agreement dated February 24, 2014 among the Borrower, Wells Fargo Securities, LLC and Wells Fargo.

 

“Administrative Agent’s Office” means the office of the Administrative Agent specified in or determined in accordance with the provisions of Section 14.1(d).

 

“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.

 

“Affiliate” means, with respect to any Person, any other Person (other than a Subsidiary of the Borrower) which directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person or any of its Subsidiaries. The term “control” means (a) solely with respect to the Borrower and its Subsidiaries the power to vote five percent (5%) or more of the securities or other equity interests of the Borrower or any Subsidiary having ordinary voting power, or (b) the possession, directly or indirectly, of any other power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.  The terms “controlling” and “controlled” have meanings correlative thereto.

 

“Agreement” means this Second Amended and Restated Credit Agreement, as the same may be further amended, restated, supplemented or otherwise modified from time to time.

 

“Annual Dividend Limit” has the meaning assigned thereto in Section 11.6(d).

 

 

 

“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.

 

“Applicable Margin” means the corresponding percentages per annum as set forth below based on the Leverage Ratio:

 

Notwithstanding the foregoing, in the event that any financial statement or Officer’s Compliance Certificate delivered pursuant to Section 8.1 or 8.2 is shown to be inaccurate (regardless of whether (i) this Agreement is in effect, (ii) the Revolving Credit Commitments are in effect, or (iii) any Extension of Credit is outstanding when such inaccuracy is discovered or such financial statement or Officer’s Compliance Certificate was delivered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (x) the Borrower shall immediately deliver to the Administrative Agent a corrected Officer’s Compliance Certificate for such Applicable Period, (y) the Applicable Margin for such Applicable Period shall be determined as if the Leverage Ratio in the corrected Officer’s Compliance Certificate were applicable for such Applicable Period, and (z) the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent the accrued additional interest and fees owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with Section 5.4.  Nothing in this paragraph shall limit the rights of the Administrative Agent and the Lenders with respect to Sections 5.1(c) and 12.2 nor any of their other rights under this Agreement.  The Borrower’s obligations under this paragraph shall survive the termination of the Revolving Credit Commitments and the repayment of all other Obligations hereunder.

 

“Application” means an application, in the form specified by the Issuing Lender from time to time, requesting the Issuing Lender to issue a Letter of Credit.

 

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

 

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 14.10), and accepted by the Administrative Agent, in substantially the form of Exhibit G or any other form approved by the Administrative Agent.

 

“Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus 1/2 of 1.0% and (c) except during any period of time during which a notice delivered to the Borrower under Section 5.8 shall remain in effect, LIBOR for an Interest Period of one month plus 1.0%; each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate or LIBOR.

“Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate.

 

“Borrower” means Jack in the Box Inc., a Delaware corporation.

 

“Borrower Materials” has the meaning assigned thereto in Section 8.8.

 

“Business Day” means (a) for all purposes other than as set forth in clause (b) below, any day other than a Saturday, Sunday or legal holiday on which banks in Charlotte, North Carolina and New York, New York, are open for the conduct of their commercial banking business and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, any LIBOR Rate Loan or any Base Rate Loan as to which the interest rate is determined by reference to LIBOR, any day that is a Business Day described in clause (a) and that is also a day for trading by and between banks in Dollar deposits in the London interbank market.

 

“Calculation Date” has the meaning assigned thereto in the definition of Applicable Margin.

 

“Capital Asset” means, with respect to the Borrower and its Restricted Subsidiaries, any asset that should, in accordance with GAAP, be classified and accounted for as a capital asset on a Consolidated balance sheet of the Borrower and its Subsidiaries.

 

“Capital Expenditures” means with respect to the Borrower and its Restricted Subsidiaries for any period, the aggregate of all items classified as capital expenditures in accordance with GAAP.

 

“Capital Lease” means any lease of any property by the Borrower or any of its Restricted Subsidiaries, as lessee, that should, in accordance with GAAP, be classified and accounted for as a capital lease on a Consolidated balance sheet of the Borrower and its Subsidiaries.

 

“Cash Collateralize” means, to pledge and deposit with, or deliver to, the Administrative Agent, for the benefit of one or more of the Issuing Lender, the Swingline Lender or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations or Swingline Loans, cash or deposit account balances or, if the Administrative Agent and, in each case to the extent applicable, the Issuing Lender and the Swingline Lender shall agree, in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and, in each case to the extent applicable, the Issuing Lender and the Swingline Lender.  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card (including non-card electronic payables and p-cards), electronic funds transfer and other cash management arrangements.

 

“Cash Management Bank” means any Person that, (a) at the time it enters into a Cash Management Agreement with a Credit Party, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent, or (b) at the time it (or its Affiliate) becomes a Lender or the Administrative Agent (including on the Closing Date), is a party to a Cash Management Agreement with a Credit Party, in each case in its capacity as a party to such Cash Management Agreement.

 

“Cash Management Obligations” has the meaning assigned thereto in the definition of “Obligations”.

 

 

 

“Change in Control” has the meaning assigned thereto in Section 12.1(g).

 

“Closing Date” means the date of this Agreement or such later Business Day upon which each condition described in Section 6.1 shall be satisfied or waived in all respects in a manner acceptable to the Administrative Agent, in its sole discretion.

 

“Code” means the Internal Revenue Code of 1986, and the rules and regulations thereunder, each as amended or modified from time to time.

 

“Collateral” means the collateral security for the Obligations pledged or granted pursuant to the Security Documents.

 

 

“Commitment” means, as to any Lender, the sum of such Lender’s Revolving Credit Commitment and Term Loan Commitment, as applicable, as set forth in the Register, as such Commitment may be reduced or otherwise modified at any time or from time to time pursuant to the terms hereof.

 

“Commitment Percentage” means, as to any Lender, such Lender’s Revolving Credit Commitment Percentage or Term Loan Percentage, as applicable.

 

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

 

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated” means, when used with reference to financial statements or financial statement items of any Person, such statements or items on a consolidated basis in accordance with applicable principles of consolidation under GAAP.

 

“Credit Facility” means, collectively, the Revolving Credit Facility, the Swingline Facility, the L/C Facility and the Term Loan Facility.

 

“Credit Parties” means, collectively, the Borrower and the Guarantors.

 

“Debt” means, with respect to any Person at any date and without duplication, the sum of the following calculated in accordance with GAAP (to the extent GAAP applies): (a) all liabilities, obligations and indebtedness for borrowed money including, but not limited to, obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person, (b) all obligations to pay the deferred purchase price of property or services of any such Person (including, without limitation, all such obligations under non-competition agreements or earn-out agreements), except trade payables arising in the ordinary course of business not more than ninety (90) days past due (unless being disputed in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of such Person), (c) all obligations of any such Person as lessee under Capital Leases, (d) all liabilities and obligations of any other Person which would be Debt under this definition if incurred by the Borrower or any of its Subsidiaries which are secured by a Lien on any asset of the Borrower and its Restricted Subsidiaries; provided, that if such liabilities or obligations have not been assumed by, or are not otherwise recourse to (other than to the extent of such Lien), the Borrower or any of its Restricted Subsidiaries, the amount of such Debt included for the purposes of this definition will be the amount equal to the lesser of the fair market value of the assets subject to such Lien and the amount of the Debt secured, (e) all Guaranty Obligations of any such Person with respect to Debt of another Person, (f) all obligations, contingent or otherwise, of any such Person relative to the face amount of letters of credit, whether or not drawn, including, without limitation, any Reimbursement Obligation, and banker’s acceptances issued for the account of any such Person, (g) all obligations of any such Person in respect of Disqualified Capital Stock, (h) the Termination Value of any Hedging Agreements, (i) all outstanding payment obligations of any such Person with respect to Synthetic Leases and (j) the outstanding attributed principal amount incurred as an obligation of any such Person under any asset securitization program. The parties hereto agree that notwithstanding anything to the contrary in this definition, the term “Debt” as used in Section 11.1 shall refer only to Debt of the Borrower and its Restricted Subsidiaries.

 

“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

 

“Default” means any of the events specified in Section 12.1 which with the passage of time, the giving of notice or any other condition, would constitute an Event of Default.

 

“Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable) or upon the happening of any event or condition, (a)  matures, is mandatorily redeemable or is subject to mandatory repurchase (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be (i) subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments or  (ii) otherwise consented to by the Required Lenders), (b) is redeemable or is subject to repurchase at the option of the holder thereof (other than solely for Qualified Capital Stock) (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be (i) subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments or (ii) otherwise consented to by the Required Lenders), in whole or in part, (c) requires the payment of dividends in cash or (d) is or becomes convertible into or exchangeable for Debt or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is 91 days after the later of  (i) the date specified in clause (a) of the definition of Term Loan Maturity Date and (ii) the date specified in Section 2.6(a); provided, that if such Capital Stock is issued pursuant to a plan for the benefit of the Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

“Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency of the United States.

 

“Domestic Subsidiary” means any Subsidiary organized under the laws of any political subdivision of the United States.

 

“EBITDA” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for the Borrower and its Restricted Subsidiaries (other than any Permitted Franchisee Financing SPE) in accordance with GAAP:

 

 

 

In determining EBITDA, the cumulative effect of a change in accounting principles shall be disregarded, and EBITDA shall be calculated on a pro forma basis to give effect to any Material Acquisition or Purchase or Material Dispositions as set forth below, in a manner reasonably determined by, and certified by the chief financial officer of the Borrower, or another Responsible Officer reasonably acceptable to the Administrative Agent, and supported by financial information and related calculations in form and substance reasonably satisfactory to the Administrative Agent.  Each such pro forma calculation shall be made, assuming such transaction occurred on the first day of the applicable period for which EBITDA is being calculated, (A) to include the EBITDA attributable to any Person, assets, business or line of business acquired pursuant to any Material Acquisition or Purchase during such period and (B) to exclude the EBITDA attributable to any Person, assets, business or line of business sold, transferred or otherwise disposed of pursuant to Material Disposition during such period.  As used in this definition, “Material Acquisition or Purchase” means any Permitted Acquisition of any Person, assets, business or line of business and any purchase (or series of related purchases) of restaurant units from franchisees pursuant to Section 11.14 in each case that involves the payment of consideration by the Borrower and its Restricted Subsidiaries in excess of $10,000,000 and “Material Disposition” means any sale, transfer or disposition (or series of related sales, transfers or dispositions) of any Person, assets, business or line of business (excluding any sales of restaurant units to franchisees and other sales, transfers or dispositions of any Person, assets, business or line of business in the ordinary course of business) in each case that yields gross proceeds to the Borrower or any of its Restricted Subsidiaries in excess of $10,000,000.

“EBITDAR” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for the Borrower and its Restricted Subsidiaries in accordance with GAAP: (a) EBITDA for such period, plus (b) Rental Expense for such period.

 

 “Employee Benefit Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA which (a) is sponsored, maintained, contributed to, or required to be contributed to by the Borrower or any ERISA Affiliate or (b) has at any time within the preceding six (6) years been sponsored, maintained, contributed to, or required to be contributed to by the Borrower or any current or former ERISA Affiliate.

 

“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law, including, without limitation, any and all claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to human health or the environment.

 

“Environmental Laws” means any and all federal, foreign, state, provincial and local laws, statutes, ordinances, rules, regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities, relating to the protection of human health or the environment, including, but not limited to, requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Materials.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and regulations thereunder, each as amended or modified from time to time.

“ERISA Affiliate” means any Person who together with the Borrower is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.

 

“Eurodollar Reserve Percentage” means, for any day, the percentage which is in effect for such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City.

“Event of Default” means any of the events specified in Section 12.1, provided that any requirement for passage of time, giving of notice, or any other condition, has been satisfied.

 

 

“Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the liability of such Credit Party for or the guarantee of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any liability or guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the liability for or the guarantee of such Credit Party or the grant of such security interest becomes effective with respect to such Swap Obligation (such determination being made after giving effect to any applicable keepwell, support or other agreement for the benefit of the applicable Credit Party, including under Section 11 of the Guaranty Agreement).  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal for the reasons identified in the immediately preceding sentence of this definition.

 

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 5.12(b)) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 5.11, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 5.11(g), (d) any United States federal withholding Taxes imposed under FATCA and (e) all liabilities, penalties and interest with respect to any of the foregoing.

“Existing Credit Agreement” means the Amended and Restated Credit Agreement dated as of November 5, 2012, by and among the Borrower, certain banks and other financial institutions, as lenders, and Wells Fargo, as administrative agent, as amended, restated, supplemented or otherwise modified prior to the Closing Date.

 

“Existing Letters of Credit” means those letters of credit existing on the Closing Date and identified on Schedule 1.1(a).

 

“Existing Permitted Franchisee Financing Documents” means, collectively, (a) that certain Loan and Security Agreement dated as of January 14, 2011, by and among, Jack in the Box Franchise Finance, LLC, the Borrower, Nieuw Amsterdam Receivables Corporation, as conduit lender, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., New York Branch, as facility agent and as a committed lender, certain other committed lenders, conduit lenders and facility agents party thereto, U.S. Bank National Association, as paying agent and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., New York Branch, as administrative agent, (b) the Capital Note Purchase Agreement, dated as of January 14, 2011 by and among Jack in the Box Franchise Finance, LLC and the Borrower and (c) the Sale Agreement dated January 14, 2011 by and among Jack in the Box Franchise Finance, LLC and the Borrower.

 

“Extensions of Credit” means, as to any Lender at any time, (a) an amount equal to the sum of (i) the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding, (ii) such Lender’s Revolving Credit Commitment Percentage of the L/C Obligations then outstanding, (iii) such Lender’s Revolving Credit Commitment Percentage of the Swingline Loans then outstanding and (iv) the aggregate principal amount of the Term Loan made by such Lender then outstanding, or (b) the making of any Loan or participation in any Letter of Credit by such Lender, as the context requires.

 

 

“FDIC” means the Federal Deposit Insurance Corporation, or any successor thereto.

 

“Fiscal Year” means the fiscal year of the Borrower and its Subsidiaries ending on the Sunday that is closest to September 30.

 

“Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.

 

 

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

 

“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

“Funded Debt” means, as of any date of determination with respect to the Borrower and its Restricted Subsidiaries (other than any Permitted Franchisee Financing SPE) on a Consolidated basis without duplication, the sum of (a) all Debt of the Borrower and its Restricted Subsidiaries referred to in clauses (a), (c) and (f) of the definition of “Debt” (excluding, in the case of clause (f), Debt in respect of obligations under any undrawn letter of credit) and (b) to the extent that the underlying guaranteed Debt would be Debt of the types referred to in clause (a) of this definition, Debt referred to in clause (e) of the definition of “Debt” (including, without limitation, any Guaranty Obligations of the Borrower or any of its Restricted Subsidiaries (other than any Permitted Franchisee Financing SPE) in connection with any Permitted Franchisee Financing Program).

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied on such date of determination.

 

 

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

 

“Guaranty Agreement” means the unconditional Amended and Restated Guaranty Agreement dated as of March 19, 2014, executed by each of the Guarantors in favor of the Administrative Agent and the Secured Parties, in the form of Exhibit H, as amended, restated, supplemented or otherwise modified from time to time hereafter.

 

“Guaranty Obligation” means, with respect to any Person, without duplication, any obligation, contingent or otherwise, of any such Person pursuant to which such Person has directly or indirectly guaranteed any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of any such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement condition or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, that the term Guaranty Obligation shall not include endorsements for collection or deposit in the ordinary course of business. The parties hereto agree that notwithstanding anything to the contrary in this definition, the term “Guaranty Obligations” as used in the definition of Debt for purposes of Section 11.1 shall refer only to Guaranty Obligations of the Borrower and its Restricted Subsidiaries.

“Hazardous Materials” means any substances or materials (a) which are or become defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human health or the environment and are or become regulated by any Governmental Authority, (c) the presence of which require investigation or remediation under any Environmental Law or common law, (d) the discharge or emission or release of which requires a permit or license under any Environmental Law or other Governmental Approval, (e) which are deemed to constitute a nuisance or a trespass which pose a health or safety hazard to Persons or neighboring properties, (f) which consist of underground or aboveground storage tanks, whether empty, filled or partially filled with any substance, or (g) which contain, without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.

 

“Hedging Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement; provided, that in no event shall any commodity swap or other agreement or arrangement related to commodity prices constitute a “Hedging Agreement” under this Agreement.

 

“Hedging Bank” means any Person that, (a) at the time it enters into a Hedging Agreement with a Credit Party, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent or (b) at the time it (or its Affiliate) becomes a Lender or the Administrative Agent (including on the Closing Date), is a party to a Hedging Agreement with a Credit Party, in each case in its capacity as a party to such Hedging Agreement.

 

“Hedging Obligations” has the meaning assigned thereto in the definition of “Obligations”.

 

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

 

“Independent Collateral Account” means a collateral account established and maintained by the Independent Issuer. The amounts held in such collateral account shall in no event exceed $55,000,000 in the aggregate at any time, shall be subject to the Lien of the Independent Issuer pursuant to Section 11.2 and shall be available to reimburse the Independent Issuer for draws, fees, expenses and related obligations with respect to the Independent Letters of Credit in the event that the Borrower defaults on its reimbursement obligations to the Independent Issuer with respect to such letters of credit.

“Independent Issuer” means Wells Fargo, in its capacity as issuer of the Independent Letters of Credit.

 

“Independent Letters of Credit” means those letters of credit issued by the Independent Issuer for the account of the Borrower in an aggregate maximum face amount not to exceed $50,000,000.  The Independent Letters of Credit shall be issued outside of the Credit Facility and shall not constitute Letters of Credit under this Agreement. Each Independent Letter of Credit shall expire on a date satisfactory to the Independent Issuer, which date shall be no later than the earlier of (A) one (1) year after the date of its issuance (but any Independent Letter of Credit may, by its terms, be renewable annually with the consent of the Independent Issuer), and (B) the fifth (5th) Business Day prior to the date specified in Section 2.6(a).

 

“Innovation Center Property” means the Borrower’s product marketing, research and development facility in San Diego, California (including the real property upon which such facility is situated and the adjacent property of approximately four acres that is owned by the Borrower).

 

“Insurance and Condemnation Proceeds” has the meaning assigned thereto in Section 4.4(b)(iv).

 

“Interest Expense” means, with respect to the Borrower and its Restricted Subsidiaries (other than any Permitted Franchisee Financing SPE) for any period, the gross interest expense (including, without limitation, interest expense attributable to Capital Leases), net of all interest income of the Borrower and its Restricted Subsidiaries (other than any Permitted Franchisee Financing SPE) for such period, all determined for such period on a Consolidated basis without duplication, in accordance with GAAP.

 

“Interest Period” has the meaning assigned thereto in Section 5.1(b).

 

“Investments” has the meaning assigned thereto in Section 11.3.

 

“IRS” means the United States Internal Revenue Service.

 

“ISP98” means the International Standby Practices (1998 Revision, effective January 1, 1999), International Chamber of Commerce Publication No. 590.

 

“Issuing Lender” means Wells Fargo in its capacity as issuing lender hereunder and any successor thereto appointed pursuant to Section 13.6.

 

“Joinder Agreement” means, each Joinder Agreement executed in favor of the Administrative Agent for the ratable benefit of itself and the Lenders, in each case in form and substance to be mutually agreed upon by the Borrower and the Administrative Agent.

 

“Joint Fee Letter” means the separate fee letter agreement dated February 24, 2014, among the Borrower, the Arrangers, Wells Fargo and Bank of America, N.A.

“L/C Commitment” means the lesser of (a) Seventy-Five Million Dollars ($75,000,000) and (b) the Revolving Credit Commitment.

 

“L/C Facility” means the letter of credit facility established pursuant to Article III.

 

“L/C Obligations” means at any time, an amount equal to the sum of (a) the aggregate undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit which have not then been reimbursed pursuant to Section 3.5.

 

“L/C Participants” means the collective reference to all the Revolving Credit Lenders.

 

“L/C Supporting Documentation” has the meaning assigned thereto in Section 3.2.

 

 

“Lending Office” means, with respect to any Lender, the office of such Lender maintaining such Lender’s Extensions of Credit.

 

“Letters of Credit” means the collective reference to the standby letters of credit issued pursuant to Section 3.1 and the Existing Letters of Credit.

 

“Leverage Ratio” has the meaning assigned thereto in Section 10.1.

 

“LIBOR” means,

 

(a)  for any interest rate calculation with respect to a LIBOR Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period which appears on Reuters Screen LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period. If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page), then “LIBOR” shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period; and

 

(b) for any interest rate calculation with respect to a Base Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to one month (commencing on the date of determination of such interest rate) which appears on the Reuters Screen LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London time) on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day. If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page) then “LIBOR” for such Base Rate Loan shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) on such date of determination for a period equal to one month commencing on such date of determination.

 

 

 

“LIBOR Rate” means a rate per annum determined by the Administrative Agent pursuant to the following formula:

 

1.00-Eurodollar Reserve Percentage

 

“LIBOR Rate Loan” means any Loan bearing interest at a rate based upon the LIBOR Rate.

 

“Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge, charge, security interest, hypothecation or encumbrance of any kind in respect of such asset. For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease or other title retention agreement relating to such asset.

 

“Loan Documents” means, collectively, this Agreement, the Notes, the Applications, the L/C Supporting Documentation, the Security Documents, the Administrative Agent Fee Letter, the Joint Fee Letter, each Joinder Agreement and each other document, instrument, certificate and agreement executed and delivered by the Borrower or any Subsidiary thereof in connection with this Agreement or otherwise contemplated hereby (excluding any Hedging Agreement or Cash Management Agreement), all as may be amended, restated, supplemented or otherwise modified from time to time.

 

“Loans” means the collective reference to the Revolving Credit Loans, the Swingline Loans and the Term Loan, and “Loan” means any of such Loans.

“Maintenance Capital Expenditures” means, for any period, Capital Expenditures for replacement acquisitions, additions and betterments related to restaurant units of the Borrower or any of its Restricted Subsidiaries for such period, including the following: (a) equipment/furnishing, (b) landscaping/site improvements, (c) building improvements, including paint and demolition, (d) roofing, (e) plumbing/sewer, (f) electrical, and (g) parking lot paving/overlay; provided, however, that Maintenance Capital Expenditures shall not include Capital Expenditures related to: (x) new sites, (y) corporate projects, including kitchen/operational enhancements and (z) restaurant re-imaging, including site remodels and rebuilds.

 

“Margin Stock” has the meaning assigned thereto in Regulation U.

 

“Material Adverse Effect” means a material adverse effect on (a) the properties, business, operations or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole or (b) the ability of the Borrower or any of its Subsidiaries to perform its obligations under any Loan Document.

 

“Material Contract” means (a) any contract or other agreement, written or oral, of the Borrower or any of its Subsidiaries involving monetary liability of or to any such Person in an amount in excess of $25,000,000 per annum, or (b) any other contract or agreement, written or oral, of the Borrower or any of its Restricted Subsidiaries the failure by the Borrower or any of its Restricted Subsidiaries to comply with which could reasonably be expected to have a Material Adverse Effect.

 

“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of the Issuing Lender with respect to Letters of Credit issued and outstanding at such time (or such lesser amount as may be agreed to by the Issuing Lender in its sole discretion) and (b) in all cases other than those specified in clause (a), an amount equal to the applicable Fronting Exposure (including, to the extent applicable, any requested Swingline Loan).

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or is accruing an obligation to make, or has accrued an obligation to make contributions within the preceding six (6) years.

 

“Net Cash Proceeds” means, as applicable, (a) with respect to any sale or other disposition of assets, the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from such sale less the sum of (i) all income taxes and other taxes paid or reasonably estimated to be payable within two (2) years from the date of such sale or disposition as a result of such sale or disposition (after taking into account any available tax credits or deductions and any tax sharing arrangements) and any other fees and expenses incurred in connection therewith and (ii) the principal amount of, premium, if any, and interest on any Debt secured by a Lien on the asset (or a portion thereof) sold, which Debt is required to be repaid in connection with such sale, (b) with respect to any issuance of Debt (including, without limitation, the Permitted Senior Notes and Subordinated Debt), the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries therefrom less all legal, underwriting and other fees and expenses incurred in connection therewith and (c) with respect to any payment under an insurance policy or in connection with a condemnation proceeding, the amount of cash proceeds received by the Borrower or its Restricted Subsidiaries from an insurance company or Governmental Authority, as applicable, net of all expenses of collection; provided, that Net Cash Proceeds shall not include any such cash received by or on behalf of the Borrower or its Restricted Subsidiaries with respect to any Permitted Sale-Leaseback Transaction with respect to the Innovation Center Property.

“Net Income” means, with respect to the Borrower and its Restricted Subsidiaries, for any period of determination, the net income (or loss) for such period, determined on a Consolidated basis, without duplication, in accordance with GAAP; provided that there shall be excluded from Net Income (a) the net income (or loss) of any Person (other than a Subsidiary which shall be subject to clause (c) below), in which the Borrower or any of its Restricted Subsidiaries has a joint interest with a third party, except to the extent such net income is actually paid to the Borrower or any of its Restricted Subsidiaries by dividend or other distribution during such period (in an amount not to exceed the Borrower’s or such Restricted Subsidiary’s share of equity income from such Person), (b) the net income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary of the Borrower or any of its Restricted Subsidiaries or is merged into or consolidated with the Borrower or any of its Restricted Subsidiaries or that Person’s assets are acquired by the Borrower or any of its Restricted Subsidiaries except to the extent included pursuant to the foregoing clause (a), and (c) the net income (if positive) of any Subsidiary that is not a Guarantor, to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary to the Borrower or any Credit Party of such net income (A) is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute rule or governmental regulation applicable to such Subsidiary or (B) would be subject to any taxes payable on such dividends or distributions, but in each case only to the extent of such prohibition or taxes.

 

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver, amendment, modification or termination that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 14.11 and (b) has been approved by the Required Lenders.

 

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

“Notes” means the collective reference to the Revolving Credit Notes, the Swingline Note and the Term Notes, and “Note” means any of such Notes.

 

“Notice of Account Designation” has the meaning assigned thereto in Section 2.3(b).

 

“Notice of Borrowing” has the meaning assigned thereto in Section 2.3(a).

 

“Notice of Conversion/Continuation” has the meaning assigned thereto in Section 5.2.

 

“Notice of Prepayment” has the meaning assigned thereto in Section 2.4(d).

“Obligations” means, in each case, whether now in existence or hereafter arising: (a) the principal of and interest on the Loans, (b) the L/C Obligations, (c) all existing or future payment and other obligations owing by any Credit Party under any Hedging Agreement (which such Hedging Agreement is permitted hereunder) with a Hedging Bank, other than an Excluded Swap Obligation (all such obligations with respect to any such Hedging Agreement, “Hedging Obligations”), (d) all existing or future payment and other obligations owing by any Credit Party under any Cash Management Agreement (which such Cash Management Agreement is permitted hereunder) with a Cash Management Bank (all such obligations with respect to any such Cash Management Agreement, “Cash Management Obligations”) and (e) all other fees and commissions (including attorneys’ fees), charges, indebtedness, loans, liabilities, financial accommodations, obligations, covenants and duties owing by the Borrower or any of its Subsidiaries to the Secured Parties or the Administrative Agent, in each case under or in respect of this Agreement, any Letter of Credit, any other Loan Document or any agreement governing any Hedging Obligations or Cash Management Obligations, of every kind, nature and description, direct or indirect, absolute or contingent, due or to become due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any note and, in each case, including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws, naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that (i) the Hedging Obligations and the Cash Management Obligations shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of the Hedging Obligations or the Cash Management Obligations; provided, further, that for the avoidance of doubt, the Obligations shall not include any Excluded Swap Obligation.

 

“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.

 

“Officer’s Compliance Certificate” has the meaning assigned thereto in Section 8.2.

 

“Operating Lease” means, as to any Person as determined in accordance with GAAP, any lease of property (whether real, personal or mixed) by such Person as lessee which is not a Capital Lease.

 

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“Other Guaranteed Debt” has the meaning assigned thereto in Section 11.1(i).

 

“Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.12).

“Participant” has the meaning assigned thereto in Section 14.10(d).

 

“Participant Register” has the meaning assigned thereto in Section 14.10(d).

 

“Patriot Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) as amended or modified from time to time.

 

“PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.

 

“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code.

 

“Permitted Acquisition” has the meaning assigned thereto in Section 11.3(h).

 

“Permitted Acquisition Diligence Information” means with respect to any Acquisition proposed by the Borrower or any Restricted Subsidiary thereof, to the extent applicable,

 

(a) all financial statements provided to, or otherwise made available to, the Borrower or such Restricted Subsidiary with respect to the Person, assets, business or line of business being acquired; and

 

(b) all financial information, all Material Contracts, all customer lists, all supply agreements, and all other material information, in each case to the extent provided to, or otherwise made available to, the Borrower or such Restricted Subsidiary and only to the extent that such information and documents may be provided to the Administrative Agent without the breach of any legally binding agreement; provided that the Borrower or such Restricted Subsidiary shall have negotiated in good faith with the other parties to such Acquisition to allow for such information and documents to be provided to the Administrative Agent;

 

provided that the Borrower and its Restricted Subsidiaries shall have no obligation to provide such information and documents (i) unless such information and documents are requested by the Administrative Agent to be delivered to the Administrative Agent in connection with such proposed Acquisition, or (ii) to the extent that such information and documents are unable to be provided to the Administrative Agent without the breach of Applicable Law.

 

“Permitted Acquisition Documents” means with respect to any Acquisition proposed by the Borrower or any Restricted Subsidiary thereof,

 

 

provided that the Borrower and its Restricted Subsidiaries shall have no obligation to provide such opinions and documents (i) unless such opinions and documents are requested by the Administrative Agent to be delivered to the Administrative Agent in connection with such proposed Acquisition, or (ii) to the extent that such opinions and documents are unable to be provided to the Administrative Agent without the breach of Applicable Law.

 

“Permitted Franchisee Financing Program” means any financing arrangement whereby the Borrower or any Subsidiary directly or indirectly invests in a Permitted Franchisee Financing SPE or incurs a Guaranty Obligation with respect to Debt incurred by a Permitted Franchisee Financing SPE in order to permit the Permitted Franchisee Financing SPE to obtain third party Debt for the benefit of franchisees of the Borrower and its Subsidiaries, including without limitation, the franchisee financing program established under the Existing Permitted Franchisee Financing Documents.

 

“Permitted Franchisee Financing SPE” means any special purpose Subsidiary (including, without limitation, Jack in the Box Franchise Finance, LLC) or other Person that is a special purpose entity in which the Borrower or any Subsidiary owns any Capital Stock created solely to provide or facilitate franchisee financing pursuant to any Permitted Franchisee Financing Program; provided that:

 

 

 

 

 

“Permitted Sale-Leaseback Transaction” means any sale and leaseback transaction with any Person providing for the leasing by the Borrower or any of its Restricted Subsidiaries of real or personal property of (a) existing restaurant units owned by the Borrower or any Restricted Subsidiary on the Closing Date and held for resale as set forth on Schedule 1.1(b), (b) newly created restaurant units not in existence on the Closing Date, (c) existing restaurant units owned by any franchisee of the Borrower or lessor to the Borrower or any of its Subsidiaries that are acquired by the Borrower after the Closing Date or (d) the Innovation Center Property; provided that, in each case, the restaurant unit or units (or the Innovation Center Property) are sold by the Borrower or such Restricted Subsidiary for fair value and cash consideration only; and provided further that, the aggregate amount of gross proceeds for all such sales in any Fiscal Year of the Borrower shall not exceed $115,000,000.

 

“Permitted Senior Notes” means senior unsecured notes issued by the Borrower in an aggregate principal amount not to exceed $300,000,000; provided that:

 

 

 

 

 

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

“Platform” has the meaning assigned thereto in Section 8.8.

 

“Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.

 

“Public Lenders” has the meaning assigned thereto in Section 8.8.

 

“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.

 

“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) the Issuing Lender, as applicable.

 

“Register” has the meaning assigned thereto in Section 14.10(c).

 

“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System (12 C.F.R. 221).

 

“Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System (12 C.F.R. 224).

 

“Reimbursement Obligation” means the obligation of the Borrower to reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.

 

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

 

“Rental Expense” means, with respect to the Borrower and its Restricted Subsidiaries (other than any Permitted Franchisee Financing SPE) for any period, all rental expenses with respect to Operating Leases (including, without limitation, any rental expenses incurred in connection with a Permitted Sale-Leaseback Transaction) of the Borrower and its Restricted Subsidiaries (other than any Permitted Franchisee Financing SPE) for such period, net of all cash received from rental payments made by sublessees to the Borrower or any of its Restricted Subsidiaries (other than any Permitted Franchisee Financing SPE) during such period, determined on a Consolidated basis in accordance with GAAP.

“Required Lenders” means, at any date, (a) any combination of Lenders holding more than fifty percent (50%) of the sum of (i) the aggregate amount of the Revolving Credit Commitment plus (ii) the aggregate outstanding principal amount of the Term Loan or (b) if the Revolving Credit Commitment has been terminated, any combination of Lenders holding more than fifty percent (50%) of the aggregate Extensions of Credit; provided that the Revolving Credit Commitment of, and the portion of the Extensions of Credit, as applicable, held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

“Required Revolving Credit Lenders” means, at any date, any combination of Revolving Credit Lenders holding more than fifty percent (50%) of the sum of the aggregate amount of the Revolving Credit Commitment or, if the Revolving Credit Commitment has been terminated, any combination of Revolving Credit Lenders holding more than fifty percent (50%) of the aggregate Extensions of Credit under the Revolving Credit Facility; provided that the Revolving Credit Commitment of, and the portion of the Extensions of Credit under the Revolving Credit Facility, as applicable, held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Credit Lenders.

 

“Responsible Officer” means, as to any Person, any of the following: the chief executive officer, chief financial officer or treasurer of such Person or any other officer of such Person reasonably acceptable to the Administrative Agent.  Any document delivered hereunder or under any other Loan Document that is signed by a Responsible Officer of a Person shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.

 

“Restricted Subsidiary” means any Subsidiary of the Borrower that is not an Unrestricted Subsidiary.

 

“Revolving Credit Commitment” means (a) as to any Revolving Credit Lender, the obligation of such Revolving Credit Lender to make Revolving Credit Loans to, and to purchase participations in L/C Obligations and Swingline Loans for the account of, the Borrower hereunder in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s name on the Register, as such amount may be reduced or modified at any time or from time to time pursuant to the terms hereof, and (b) as to all Revolving Credit Lenders, the aggregate commitment of all Revolving Credit Lenders to make Revolving Credit Loans and to purchase participations in Letters of Credit and Swingline Loans, as such amount may be reduced or increased at any time or from time to time pursuant to the terms hereof.  The aggregate Revolving Credit Commitment of all Revolving Credit Lenders on the Second Amendment Effective Date shall be Nine Hundred Million Dollars ($900,000,000).

 

“Revolving Credit Commitment Percentage” means, as to any Revolving Credit Lender at any time, the ratio of (a) the amount of the Revolving Credit Commitment of such Revolving Credit Lender to (b) the Revolving Credit Commitments of all Revolving Credit Lenders.  If the Revolving Credit Commitments have terminated or expired, the Revolving Credit Commitment Percentages shall be determined based upon the Revolving Credit Commitments most recently in effect, giving effect to any assignments.

“Revolving Credit Facility” means the revolving credit facility established pursuant to Article II of this Agreement.

 

“Revolving Credit Lender” means each Lender with a Revolving Credit Commitment.

 

“Revolving Credit Loan” means any revolving credit loan made to the Borrower pursuant to Section 2.1, and all such revolving credit loans collectively as the context requires.

 

“Revolving Credit Maturity Date” means the earliest of the dates referred to in Section 2.6.

 

“Revolving Credit Note” means a promissory note made by the Borrower in favor of a Lender evidencing the Revolving Credit Loans made by such Lender, substantially in the form of Exhibit A-1, and any amendments, supplements and modifications thereto, any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.

 

“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto.

 

 

 

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

“Second Amendment” means that certain Waiver, Joinder and Second Amendment, dated as of July 1, 2015, by and among the Borrower, the Guarantors, the Lenders party thereto and the Administrative Agent.

 

“Second Amendment Effective Date” means the effective date of the Second Amendment.

 

“Secured Parties” means the Administrative Agent, the Lenders, the Issuing Lender, each Hedging Bank and each Cash Management Bank.

 

“Security Documents” means the collective reference to the Guaranty Agreement, the Collateral Agreement and each other agreement or writing pursuant to which the Borrower or any Restricted Subsidiary thereof purports to pledge or grant a security interest in any property or assets securing the Obligations or any such Person purports to guaranty the payment and/or performance of the Obligations, in each case, as amended, restated, supplemented or otherwise modified from time to time.

 

“Solvent” means, as to the Borrower and its Restricted Subsidiaries on a particular date, that any such Person (a) has capital sufficient to carry on its business and transactions and all business and transactions in which it is about to engage and is able to pay its debts as they mature, (b) owns property having a value, both at fair valuation and at present fair saleable value, greater than the amount required to pay its probable liabilities (including contingencies), and (c) does not believe that it will incur debts or liabilities beyond its ability to pay such debts or liabilities as they mature.

 

 

“Subordinated Debt” means the collective reference to any Debt of the Borrower or any Restricted Subsidiary subordinated in right and time of payment to the Obligations with a maturity date that is no earlier than the date that is six (6) months after the later of (a) the date specified in Section 2.6(a) and (b) the date specified in clause (a) of the definition of Term Loan Maturity Date and containing (i) subordination terms satisfactory to the Administrative Agent and (ii) such other terms and conditions (other than the interest rate and any original issue discount, which shall be consistent with the then-market interest rate and original issue discount for such type of subordinated debt (as reasonably determined in good faith by the board of directors of the Borrower)) that are reasonably satisfactory to the Administrative Agent.

“Subsidiary” means as to any Person, any corporation, partnership, limited liability company or other entity of which more than fifty percent (50%) of the outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity is at the time owned by or the management is otherwise controlled by such Person (irrespective of whether, at the time, Capital Stock of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency). Unless otherwise qualified, references to “Subsidiary” or “Subsidiaries” herein shall refer to those of the Borrower; provided that, notwithstanding the foregoing, the Unrestricted Subsidiaries shall not be deemed to be Subsidiaries for the purposes of Articles X and XI of this Agreement.

 

“Swap Obligation” means, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

 

“Swingline Commitment” means the lesser of (a) Twenty Million Dollars ($20,000,000) and (b) the Revolving Credit Commitment.

 

“Swingline Facility” means the swingline facility established pursuant to Section 2.2.

 

“Swingline Lender” means Wells Fargo in its capacity as swingline lender hereunder or any successor thereto.

 

“Swingline Loan” means any swingline loan made by the Swingline Lender to the Borrower pursuant to Section 2.2, and all such swingline loans collectively as the context requires.

 

“Swingline Note” means a promissory note made by the Borrower in favor of the Swingline Lender evidencing the Swingline Loans made by the Swingline Lender, substantially in the form of Exhibit A-2, and any amendments, supplements and modifications thereto, any substitutes therefor, and any replacements, restatements, renewals or extensions thereof, in whole or in part.

 

“Swingline Termination Date” means the first to occur of (a) the resignation of Wells Fargo as Administrative Agent in accordance with Section 13.6 and (b) the Revolving Credit Maturity Date.

 

“Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP.

 

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, fines, additions to tax or penalties applicable thereto.

“Term Loan” means the term loan to be made to the Borrower by the Lenders pursuant to Section 4.1.

 

“Term Loan Commitment” means (a) as to any Term Loan Lender, the obligation of such Term Loan Lender to make a portion of the Term Loan to the account of the Borrower hereunder in an aggregate principal amount not to exceed the amount set forth opposite such Term Loan Lender’s name on the Register, as such amount may be reduced or otherwise modified at any time or from time to time pursuant to the terms hereof and (b) as to all Term Loan Lenders, the aggregate commitment of all Term Loan Lenders to make the Term Loan.  The Term Loan Commitment of all Term Loan Lenders as of the Closing Date shall be Two Hundred Million Dollars ($200,000,000).

 

“Term Loan Facility” means the term loan facility established pursuant to Article IV of this Agreement.

 

“Term Loan Lender” means any Lender with a Term Loan Commitment or holding a portion of the outstanding Term Loan.

 

“Term Loan Maturity Date” means the first to occur of (a) March 19, 2019 or (b) the date of termination by the Administrative Agent on behalf of the Lenders pursuant to Section 12.2(a).

 

“Term Loan Percentage” means, as to any Lender, (a) prior to making the Term Loan, the ratio of (i) the Term Loan Commitment of such Lender to (ii) the Term Loan Commitments of all Lenders and (b) after the Term Loan is made, the ratio of (i) the outstanding principal balance of the Term Loan of such Lender to (ii) the aggregate outstanding principal balance of the Term Loan of all Lenders.

 

“Term Note” means a promissory note made by the Borrower in favor of a Lender evidencing the portion of the Term Loan made by such Lender, substantially in the form of Exhibit A-3, and any amendments, supplements and modifications thereto, any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.

 

“Termination Event” means except for any such event or condition that could not reasonably be expected to have a Material Adverse Effect: (a) a “Reportable Event” described in Section 4043 of ERISA for which the notice requirement has not been waived by the PBGC or by applicable regulation, or (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan with two or more contributing sponsors during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA resulting in liability to the Borrower or any ERISA Affiliate pursuant to Section 4063 or 4064 of ERISA, or (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if such termination, filing or treatment could reasonably be expected to result in the Borrower making additional contributions to a Pension Plan, or (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e) any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, or (f) the imposition of a Lien pursuant to Section 412(n) of the Code or Section 302 of ERISA, or (g) the incurrence by the Borrower or any ERISA Affiliate of any withdrawal liability with respect to the partial or complete withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer Plan, or (h) any event or condition which results in the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA.

“Termination Value” means, in respect of any one or more Hedging Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, any monetary obligations of the Borrower and its Subsidiaries in respect of such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to- market value(s) for any Hedging Agreements upon which the Borrower and its Subsidiaries would have a monetary obligation if such Hedging Agreement were to be closed out and a termination value were to be determined on the date of calculation, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender).

 

 

 

“UCC” means the Uniform Commercial Code as in effect in the State of New York, as amended or modified from time to time.

 

“Uniform Customs” means the Uniform Customs and Practice for Documentary Credits (2007 Revision), effective July, 2007 International Chamber of Commerce Publication No. 600.

 

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

“U.S. Tax Compliance Certificate” has the meaning assigned thereto in Section 5.11(g).

 

“United States” means the United States of America.

 

“Unrestricted Subsidiary” means any Subsidiary of the Borrower listed on Schedule 1.1(c) or which is designated as an Unrestricted Subsidiary after the Closing Date pursuant to Section 9.9, provided that at all times such (a) Unrestricted Subsidiary’s obligations are non-recourse to the Borrower and its Subsidiaries and (b) Unrestricted Subsidiary individually and collectively with all other Unrestricted Subsidiaries meets the requirements set forth in Section 9.9; provided further that, notwithstanding anything to the contrary in this Agreement or any other Loan Document, any Subsidiary that (i) guaranties or provides collateral for the Permitted Senior Notes (if any) or any Subordinated Debt (if any) or (ii) is designated as a “Restricted Subsidiary” (or the equivalent) under, and as defined in, the Permitted Senior Notes (if any), or any Subordinated Debt (if any), shall, in each case, immediately cease to be an Unrestricted Subsidiary upon such designation or its entry into such guaranty or its provision of collateral for the Permitted Senior Notes (if any) or any Subordinated Debt (if any).

“Wells Fargo” means Wells Fargo Bank, National Association, a national banking association, and its successors.

 

“Wholly Owned” means, with respect to a Subsidiary, that all of the shares of Capital Stock of such Subsidiary are, directly or indirectly, owned or controlled by the Borrower and/or one or more of its Wholly Owned Subsidiaries (except for directors’ qualifying shares or other shares required by Applicable Law to be owned by a Person other than the Borrower and/or one or more of its Wholly Owned Subsidiaries).

 

“Withholding Agent” means the Borrower and the Administrative Agent.

 

 

 

 

 

 

 

 

 

 

 

 

(b)      Refunding.

(i)       Swingline Loans shall be refunded by the Revolving Credit Lenders on demand by the Swingline Lender. Such refundings shall be made by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitment Percentages and shall thereafter be reflected as Revolving Credit Loans of the Revolving Credit Lenders on the books and records of the Administrative Agent. Each Revolving Credit Lender shall fund its respective Revolving Credit Commitment Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but in no event later than 3:00 p.m. on the next succeeding Business Day after such demand is made. No Revolving Credit Lender’s obligation to fund its respective Revolving Credit Commitment Percentage of a Swingline Loan shall be affected by any other Revolving Credit Lender’s failure to fund its Revolving Credit Commitment Percentage of a Swingline Loan, nor shall any Revolving Credit Lender’s Revolving Credit Commitment Percentage be increased as a result of any such failure of any other Revolving Credit Lender to fund its Revolving Credit Commitment Percentage of a Swingline Loan.

 

(ii)      The Borrower shall pay to the Swingline Lender on demand the amount of such Swingline Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the Borrower hereby authorizes the Administrative Agent to charge any account maintained by the Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of such Swingline Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitment Percentages (unless the amounts so recovered by or on behalf of the Borrower pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Administrative Agent has received notice in the manner required pursuant to Section 13.3 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable).

 

(iii)     Each Revolving Credit Lender acknowledges and agrees that its obligation to refund Swingline Loans in accordance with the terms of this Section 2.2 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article VI. Further, each Revolving Credit Lender agrees and acknowledges that if, prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2, one of the events described in Section 12.1(h) or (i) shall have occurred, each Revolving Credit Lender will, on the date the applicable Revolving Credit Loan would have been made, purchase an undivided participating interest in the Swingline Loan to be refunded in an amount equal to its Revolving Credit Commitment Percentage of the aggregate amount of such Swingline Loan. Each Revolving Credit Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Revolving Credit Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received from any Revolving Credit Lender such Revolving Credit Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Revolving Credit Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Credit Lender’s participating interest was outstanding and funded).

(c)      Defaulting Lenders. Notwithstanding anything to the contrary contained in this Agreement, this Section 2.2 shall be subject to the terms and conditions of Section 5.14 and Section 5.15.

 

 

 

(a)      Requests for Borrowing. The Borrower shall give the Administrative Agent irrevocable prior written notice substantially in the form attached hereto as Exhibit B (a “Notice of Borrowing”) not later than 2:00 p.m. (i) on the same Business Day as each Base Rate Loan and each Swingline Loan and (ii) at least three (3) Business Days before each LIBOR Rate Loan, of its intention to borrow, specifying (A) the date of such borrowing, which shall be a Business Day, (B) the amount of such borrowing, which shall be (x) with respect to Base Rate Loans (other than Swingline Loans) in an aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof, (y) with respect to LIBOR Rate Loans in an aggregate principal amount of $5,000,000 or a whole multiple of $500,000 in excess thereof and (z) with respect to Swingline Loans in an aggregate principal amount of $100,000 or a whole multiple of $100,000 in excess thereof, (C) whether such Loan is to be a Revolving Credit Loan or Swingline Loan, (D) in the case of a Revolving Credit Loan whether the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E) in the case of a LIBOR Rate Loan, the duration of the Interest Period applicable thereto. A Notice of Borrowing received after 2:00 p.m. shall be deemed received on the next Business Day. The Administrative Agent shall promptly notify the Lenders of each Notice of Borrowing. Notwithstanding anything to the contrary contained in this Agreement, no Revolving Credit Loans may be made as LIBOR Rate Loans prior to the date that is three (3) Business Days after the Closing Date unless, at least three (3) Business Days prior to the proposed borrowing date of any proposed Revolving Credit Loans, the Borrower has delivered to the Administrative Agent a letter in form and substance reasonably satisfactory to the Administrative Agent indemnifying the Lenders in the manner set forth in Section 5.9 of this Agreement and a Notice of Borrowing with respect thereto.

 

(b)      Disbursement of Revolving Credit and Swingline Loans. Not later than 3:00 p.m. on the proposed borrowing date, (i) each Lender will make available to the Administrative Agent, for the account of the Borrower, at the Administrative Agent’s Office in funds immediately available to the Administrative Agent, such Lender’s Revolving Credit Commitment Percentage of the Revolving Credit Loans to be made on such borrowing date and (ii) the Swingline Lender will make available to the Administrative Agent, for the account of the Borrower, at the Administrative Agent’s Office in funds immediately available to the Administrative Agent, the Swingline Loans to be made on such borrowing date. The Borrower hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of each borrowing requested pursuant to this Section 2.3 in immediately available funds by crediting or wiring such proceeds to the deposit account of the Borrower identified in the most recent notice substantially in the form of Exhibit C hereto (a “Notice of Account Designation”) delivered by the Borrower to the Administrative Agent or as may be otherwise agreed upon by the Borrower and the Administrative Agent from time to time. Subject to Section 5.7 hereof, the Administrative Agent shall not be obligated to disburse the portion of the proceeds of any Revolving Credit Loan requested pursuant to this Section 2.3 to the extent that any Lender has not made available to the Administrative Agent its Revolving Credit Commitment Percentage of such Loan. Revolving Credit Loans to be made for the purpose of refunding Swingline Loans shall be made by the Revolving Credit Lenders as provided in Section 2.2(b).

 

(a)      Repayment on Termination Date. The Borrower hereby agrees to repay the outstanding principal amount of (i) all Revolving Credit Loans in full on the Revolving Credit Maturity Date, and (ii) all Swingline Loans in accordance with Section 2.2(b) (but in no event later than the Revolving Credit Maturity Date), together, in each case, with all accrued but unpaid interest thereon.

 

(b)      Mandatory Repayment of Revolving Credit Loans. If at any time the outstanding principal amount of all Revolving Credit Loans plus the sum of all outstanding Swingline Loans and L/C Obligations exceeds the Revolving Credit Commitment, the Borrower agrees to repay immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Lenders, Extensions of Credit in an amount equal to such excess, with each such repayment applied first to the principal amount of outstanding Swingline Loans, second to the principal amount of outstanding Revolving Credit Loans and third, with respect to any Letters of Credit then outstanding, a payment of Cash Collateral into a Cash Collateral account opened by the Administrative Agent, for the benefit of the Revolving Credit Lenders in an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit (such Cash Collateral to be applied in accordance with Section 12.2(b)).

(c)      Mandatory Repayment from Excess Proceeds. In the event proceeds remain after the prepayments of Term Loan Facility pursuant to Section 4.4(b)(i) and (ii), an amount equal to such excess proceeds shall be used on the date of the required prepayment under Section 4.4(b)(i) and (ii) to prepay the outstanding principal amount of the Revolving Credit Loans, without a corresponding reduction of the Revolving Credit Commitment with the remaining balance, if any, to be retained by the Borrower.

 

(d)      Optional Repayments. The Borrower may at any time and from time to time repay the Revolving Credit Loans and the Swingline Loans, in whole or in part, upon at least (i) three (3) Business Days’ irrevocable notice to the Administrative Agent with respect to LIBOR Rate Loans, (ii) one (1) Business Day irrevocable notice with respect to Base Rate Loans and (iii) same day notice by 2:00 p.m. with respect to Swingline Loans, substantially in the form attached hereto as Exhibit D (a “Notice of Prepayment”) specifying the date and amount of repayment and whether the repayment is of LIBOR Rate Loans, Base Rate Loans, Swingline Loans or a combination thereof, and, if of a combination thereof, the amount allocable to each. Upon receipt of such notice, the Administrative Agent shall promptly notify each Revolving Credit Lender. If any such notice is given, the amount specified in such notice shall be due and payable on the date set forth in such notice. Partial repayments shall be in an aggregate amount of $1,000,000 or a whole multiple of $500,000 in excess thereof with respect to Base Rate Loans (other than Swingline Loans), $5,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to LIBOR Rate Loans and $100,000 or a whole multiple of $100,000 in excess thereof with respect to Swingline Loans. A Notice of Prepayment received after 2:00 p.m. shall be deemed received on the next Business Day. Each such repayment shall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof. Notwithstanding the foregoing, any such notice delivered in connection with any refinancing of all of the Credit Facility with the proceeds of such refinancing or of any incurrence of Debt, may be, if expressly so stated to be, contingent upon the consummation of such refinancing or incurrence and may be revoked by the Borrower in the event such refinancing is not consummated (provided that the failure of such contingency shall not relieve the Borrower from its obligations, if any, in respect thereof under Section 5.9).

(e)      Limitation on Repayment of LIBOR Rate Loans. The Borrower may not repay any LIBOR Rate Loan on any day other than on the last day of the Interest Period applicable thereto unless such repayment is accompanied by any amount required to be paid pursuant to Section 5.9 hereof.

 

(f)       Hedging Agreements. No repayment or prepayment pursuant to this Section shall affect any of the Borrower’s obligations under any Hedging Agreement.

 

 

(a)      Voluntary Reduction. The Borrower shall have the right at any time and from time to time, upon at least three (3) Business Days prior written notice to the Administrative Agent, to permanently reduce, without premium or penalty, (i) the entire Revolving Credit Commitment at any time or (ii) portions of the Revolving Credit Commitment, from time to time, in an aggregate principal amount not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof. The amount of each partial permanent reduction shall permanently reduce the Lenders’ Revolving Credit Commitments pro rata in accordance with their respective Revolving Credit Commitment Percentages. If any such notice is given, the amount specified in such notice shall be due and payable on the date set forth in such notice. Notwithstanding the foregoing, any such notice delivered in connection with any refinancing of all of the Credit Facility with the proceeds of such refinancing or of any incurrence of Debt, may be, if expressly so stated to be, contingent upon the consummation of such refinancing or incurrence and may be revoked by the Borrower in the event such refinancing is not consummated (provided that the failure of such contingency shall not relieve the Borrower from its obligations, if any, in respect thereof under Section 5.9).

 

(b)      Mandatory Reduction. If at any time excess proceeds remain after the prepayment of the Term Loan pursuant to Sections 4.4(b)(iii) and/or (iv), the Revolving Credit Commitment shall be permanently reduced on the date of the required prepayment under Sections 4.4(b)(iii) and/or (iv) by an amount equal to the amount of such excess proceeds.

(c)      Corresponding Payment. Each permanent reduction permitted or required pursuant to this Section 2.5 shall be accompanied by a payment of principal, first to the principal amount of outstanding Swingline Loans, second to the principal amount of outstanding Revolving Credit Loans and third to any Letters of Credit then outstanding, in each case sufficient to reduce the aggregate outstanding Revolving Credit Loans, Swingline Loans and L/C Obligations, as applicable, after such reduction to the Revolving Credit Commitment as so reduced and if the Revolving Credit Commitment as so reduced is less than the aggregate amount of all outstanding Letters of Credit, the Borrower shall be required to deposit Cash Collateral in a Cash Collateral account opened by the Administrative Agent in an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Such Cash Collateral shall be applied in accordance with Section 12.2(b). Any reduction of the Revolving Credit Commitment to zero shall be accompanied by payment of all outstanding Revolving Credit Loans and Swingline Loans (and furnishing of Cash Collateral or other arrangements satisfactory to the Issuing Lender for all L/C Obligations, if any) and shall result in the termination of the Revolving Credit Commitment and the Swingline Commitment and the Revolving Credit Facility. Any such Cash Collateral shall be applied in accordance with Section 12.2(b). If the reduction of the Revolving Credit Commitment requires the repayment of any LIBOR Rate Loan, such repayment shall be accompanied by any amount required to be paid pursuant to Section 5.9.

 

 

 

 

 

(b)      Defaulting Lenders. Notwithstanding anything to the contrary contained in this Agreement, Article III shall be subject to the terms and conditions of Section 5.14 and Section 5.15.

 

 

 

(a)                   Letter of Credit Commissions. Subject to Section 5.15(a)(iii), the Borrower shall pay to the Administrative Agent, for the account of the Issuing Lender and the L/C Participants, a letter of credit commission with respect to each Letter of Credit in an amount equal to the face amount of such Letter of Credit multiplied by the Applicable Margin with respect to Revolving Credit Loans that are LIBOR Rate Loans (determined on a per annum basis). Such commission shall be payable quarterly in arrears on the last Business Day of each calendar quarter, on the Revolving Credit Maturity Date and thereafter on demand of the Administrative Agent. The Administrative Agent shall, promptly following its receipt thereof, distribute to the Issuing Lender and, subject to Section 5.15(a)(iii), the L/C Participants all commissions received pursuant to this Section 3.3(a) in accordance with their respective Revolving Credit Commitment Percentages.

 

(b)      Issuance Fee. In addition to the foregoing commission, the Borrower shall pay the Administrative Agent, for the account of the Issuing Lender, an issuance fee with respect to each Letter of Credit issued hereunder pursuant to, and in accordance with, the Administrative Agent’s Fee Letter or as otherwise agreed to by the Borrower and the Issuing Lender. Such issuance fee shall be billed by the Administrative Agent and shall be payable by the Borrower in equal quarterly payments, in arrears, on the last Business Day of each calendar quarter commencing with the first such date to occur after the issuance of such Letter of Credit, on the Revolving Credit Maturity Date and thereafter on demand of the Administrative Agent.

 

(c)      Other Costs. In addition to the foregoing fees and commissions, the Borrower shall pay or reimburse the Issuing Lender for such normal and customary costs and expenses as are incurred or charged by the Issuing Lender in issuing, effecting payment under, amending or otherwise administering any Letter of Credit.

 

 

(a)      The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving Credit Commitment Percentage in the Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued hereunder and the amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit for which the Issuing Lender is not reimbursed in full by the Borrower through a Revolving Credit Loan or otherwise in accordance with the terms of this Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at the Issuing Lender’s address for notices specified herein an amount equal to such L/C Participant’s Revolving Credit Commitment Percentage of the amount of such draft, or any part thereof, which is not so reimbursed.

(b)      Upon becoming aware of any amount required to be paid by any L/C Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender under any Letter of Credit, the Issuing Lender shall notify the Administrative Agent and each L/C Participant of the amount and due date of such required payment and such L/C Participant shall pay to the Issuing Lender the amount specified on the applicable due date. If any such amount is paid to the Issuing Lender after the date such payment is due, such L/C Participant shall pay to the Issuing Lender on demand, in addition to such amount, the product of (i) such amount, times (ii) the daily average Federal Funds Rate as determined by the Administrative Agent during the period from and including the date such payment is due to the date on which such payment is immediately available to the Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. A certificate of the Issuing Lender with respect to any amounts owing under this Section 3.4(b) shall be conclusive in the absence of manifest error. With respect to payment to the Issuing Lender of the unreimbursed amounts described in this Section 3.4(b), if the L/C Participants receive notice that any such payment is due (A) prior to 1:00 p.m. on any Business Day, such payment shall be due that Business Day, and (B) after 1:00 p.m. on any Business Day, such payment shall be due on the following Business Day.

 

(c)      Whenever, at any time after the Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its Revolving Credit Commitment Percentage of such payment in accordance with this Section 3.4, the Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise), or any payment of interest on account thereof, the Issuing Lender will distribute to such L/C Participant its pro rata share thereof; provided, that in the event that any such payment received by the Issuing Lender shall be required to be returned by the Issuing Lender, such L/C Participant shall return to the Issuing Lender the portion thereof previously distributed by the Issuing Lender to it.

 

 

 

 

 

 

 

If not sooner paid, the Term Loan shall be paid in full, together with accrued interest thereon, on the Term Loan Maturity Date.

 

(a)      Optional Prepayment of Term Loan. The Borrower shall have the right at any time and from time to time, upon delivery to the Administrative Agent of a Notice of Prepayment at least three (3) Business Days prior to any repayment, to prepay the Term Loan in whole or in part without premium or penalty except as provided in Section 5.9. If any such notice is given, the amount specified in such notice shall be due and payable on the date set forth in such notice. Each optional prepayment of the Term Loan hereunder shall be in an aggregate principal amount of at least $5,000,000 or any whole multiple of $1,000,000 in excess thereof and shall be applied to the outstanding principal installments of the Term Loan as set forth in Section 4.3 in either direct order of maturity, inverse order of maturity or on a pro rata basis, in any case as directed by the Borrower. Each prepayment shall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof. A Notice of Prepayment received after 2:00 p.m. shall be deemed received on the next Business Day. Notwithstanding the foregoing, any Notice of a Prepayment delivered in connection with any refinancing of all of the Credit Facility with the proceeds of such refinancing or of any incurrence of Debt, may be, if expressly so stated to be, contingent upon the consummation of such refinancing or incurrence and may be revoked by the Borrower in the event such refinancing is not consummated (provided that the failure of such contingency shall not relieve the Borrower from its obligations, if any, in respect thereof under Section 5.9).

(b)      Mandatory Prepayments.

 

 

 

 

Any such prepayment shall be made within three (3) Business Days after the date of receipt of Net Cash Proceeds of any such transaction.

 

 

 

 

 

Amounts prepaid under the Term Loan pursuant to this Section may not be reborrowed.  Each prepayment shall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof.

 

No prepayment or repayment pursuant to Section 4.4 shall affect any of the Borrower’s obligations under any Hedging Agreement.

 

 

(a)      Interest Rate Options. Subject to the provisions of this Section 5.1 at the election of the Borrower, (i) Revolving Credit Loans and the Term Loan shall bear interest at (A) the Base Rate plus the Applicable Margin or (B) the LIBOR Rate plus the Applicable Margin (provided that the LIBOR Rate shall not be available until three (3) Business Days after the Closing Date unless the Borrower has delivered to the Administrative Agent a letter in form and substance satisfactory to the Administrative Agent indemnifying the Lenders in the manner set forth in Section 5.9 of this Agreement) and (ii) any Swingline Loans shall bear interest at the Base Rate plus the Applicable Margin. The Borrower shall select the rate of interest and Interest Period, if any, applicable to any Loan at the time a Notice of Borrowing is given pursuant to Section 2.3 or Section 4.2, as applicable, or at the time a Notice of Conversion/Continuation is given pursuant to Section 5.2. Any Loan or any portion thereof as to which the Borrower has not duly specified an interest rate as provided herein shall be deemed a Base Rate Loan and any LIBOR Rate Loan or any portion thereof as to which the Borrower has not duly specified an Interest Period as provided herein shall be deemed to have an Interest Period of one (1) month.

 

(b)       Interest Periods. In connection with each LIBOR Rate Loan, the Borrower, by giving notice at the times described in Sections 2.3, 4.2 or 5.2, as applicable, shall elect an interest period (each, an “Interest Period”) to be applicable to such Loan, which Interest Period shall be a period of one (1), two (2), three (3) or six (6) months with respect to each LIBOR Rate Loan; provided that:

 

 

(a)          Commitment Fee. Commencing on the Closing Date, subject to Section 5.15(a)(iii)(A), the Borrower shall pay to the Administrative Agent, for the account of the Revolving Credit Lenders, a non-refundable commitment fee at a rate per annum equal to the Applicable Margin on the average daily unused portion of the Revolving Credit Commitment of the Revolving Credit Lender (other than the Defaulting Lenders, if any); provided that the amount of outstanding Swingline Loans shall not be considered usage of the Revolving Credit Commitment for the purpose of calculating such commitment fee. The commitment fee shall be payable in arrears on the last Business Day of each calendar quarter during the term of this Agreement commencing March 31, 2014, and ending on the Revolving Credit Maturity Date. Such commitment fee shall be distributed by the Administrative Agent to the Revolving Credit Lenders (subject to Section 5.15(a)(iii)(A)) pro rata in accordance with such Lenders’ respective Revolving Credit Commitment Percentages.

 

(b)          Other Fees. The Borrower shall pay to the Arrangers and the Administrative Agent, for their own respective accounts, fees in the amounts and at the times specified in the Joint Fee Letter and the Administrative Agent’s Fee Letter. The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.

 

 

 

(b)          Participations. In addition to the accounts and records referred to in subsection (a), each Revolving Credit Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swingline Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Revolving Credit Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

 

 

 

 

Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Credit Party rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.

 

(a)          Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Sections 2.3(b) and 4.2 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the daily average Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

(b)         Payments by the Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders, the Issuing Lender or the Swingline Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders, the Issuing Lender or the Swingline Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders, the Issuing Lender or the Swingline Lender, as the case maybe, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, Issuing Lender or the Swingline Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

(c)         Nature of Obligations of Lenders Regarding Extensions of Credit. The obligations of the Lenders under this Agreement to make the Loans and issue or participate in Letters of Credit and Swingline Loans are several and are not joint or joint and several. The failure of any Lender to make available its Commitment Percentage of any Loan requested by the Borrower shall not relieve it or any other Lender of its obligation, if any, hereunder to make its Commitment Percentage of such Loan available on the borrowing date, but no Lender shall be responsible for the failure of any other Lender to make its Commitment Percentage of such Loan available on the borrowing date.

 

 

(a)          Circumstances Affecting LIBOR Rate Availability. In connection with any request for a LIBOR Rate Loan or a Base Rate Loan as to which the interest rate is determined with reference to LIBOR or a conversion to or continuation thereof, if for any reason (i) the Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest error) that Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable amount and Interest Period of such Loan, (ii) the Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest error) that reasonable and adequate means do not exist for the ascertaining the LIBOR Rate for such Interest Period with respect to a proposed LIBOR Rate Loan or any Base Rate Loan as to which the interest rate is determined with reference to LIBOR or (iii) the Required Lenders shall determine (which determination shall be conclusive and binding absent manifest error) that the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during such Interest Period, then the Administrative Agent shall promptly give notice thereof to the Borrower. Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer exist, the obligation of the Lenders to make LIBOR Rate Loans or Base Rate Loan as to which the interest rate is determined with reference to LIBOR and the right of the Borrower to convert any Loan to or continue any Loan as a LIBOR Rate Loan or a Base Rate Loan as to which the interest rate is determined with reference to LIBOR shall be suspended, and (x) in the case of LIBOR Rate Loans, the Borrower shall either (A) repay in full (or cause to be repaid in full) the then outstanding principal amount of each such LIBOR Rate Loan together with accrued interest thereon (subject to Section 5.1(d)), on the last day of the then current Interest Period applicable to such LIBOR Rate Loan or (B) convert the then outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan as to which the interest rate is not determined by reference to LIBOR as of the last day of such Interest Period or (y) in the case of Base Rate Loans as to which the interest rate is determined by reference to LIBOR, the Borrower shall convert the then outstanding principal amount of each such Loan to a Base Rate Loan as to which the interest rate is not determined by reference to LIBOR as of the last day of such Interest Period

 

 

 

(a)       Increased Costs Generally. If any Change in Law shall:

 

(i)       impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, any Lender (except any reserve requirement reflected in the LIBOR Rate) or the Issuing Lender;

 

(ii)     subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (e) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iii)    impose on any Lender or the Issuing Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or LIBOR Rate Loans made by such Lender or any Letter of Credit or participation therein;

 

and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Lender or such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, the Issuing Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, the Issuing Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender, the Issuing Lender or other Recipient, the Borrower shall promptly pay to any such Lender, the Issuing Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.