FOURTH AMENDMENT

Exhibit 10.3.3

 

FOURTH AMENDMENT

 

FOURTH AMENDMENT, dated as of December 23, 2003 (this “ Amendment ”), to the Credit Agreement, dated as of November 8, 2001 (as amended from time to time, the “ Credit Agreement ”), among Paperweight Development Corp., a Wisconsin corporation (“ Holdings ”), Appleton Papers Inc., a Delaware corporation (the “ Borrower ”), the several banks and other financial institutions or entities from time to time parties to the Credit Agreement (the “ Lenders ”), Bear, Stearns & Co. Inc., as sole lead arranger and sole bookrunner (in such capacity, the “ Lead Arranger ”), Bear Stearns Corporate Lending Inc., as syndication agent (in such capacity, the “ Syndication Agent ”), U.S. Bank, National Association and LaSalle Bank National Association, each as documentation agent (in such capacity, the “ Documentation Agents ”), M&I Marshall & Ilsley Bank, as managing agent (in such capacity, the “ Managing Agent ”), Associated Bank, N.A., as co-agent (in such capacity, the “ Co-Agent ”), and Toronto Dominion (Texas), Inc., as administrative agent (in such capacity, the “ Administrative Agent ”; together with the Syndication Agent, the Documentation Agents, the Managing Agent, and the Co-Agent, the “ Agents ”).

 

W I T N E S S E T H :

 

WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make, and have made, certain loans and other extensions of credit to the Borrower;

 

WHEREAS, Holdings and the Borrower have requested certain amendments to the Credit Agreement as more fully set forth herein; and

 

WHEREAS, the Lenders have agreed to such amendments but only on the terms and conditions contained in this Amendment.

 

NOW, THEREFORE, the parties hereto hereby agree as follows:

 

SECTION 1. Defined Terms . Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

SECTION 2. Amendments to Section 1.1 . (a) The following definitions contained in Section 1.1 of the Credit Agreement are hereby amended in their respective entireties to read as follows:

 

“ Business Day ”: a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close, provided , that (a) when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits in the applicable currency in the London interbank market, (b) when used in connection with a Foreign Currency Loan, the term “Business Day” shall also exclude any day on which banks in (i) the jurisdiction of the account to which the proceeds of such Loan are to be disbursed and (ii) the

 

jurisdiction in which payments of principal of and interest on such Loan are to made are authorized or required by law to close and (c) when used in connection with any Loan denominated in Euro, the term “Business Day” shall also exclude any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System (TARGET) (or, if such clearing system ceases to be operative, such other clearing system (if any) determined by the Administrative Agent to be a suitable replacement) is not open for settlement of payment in Euro.

 

“ Commitment ”: as to any Lender, the sum of the Tranche A Term Commitment, the Tranche D Term Commitment and the Revolving Commitment of such Lender.

 

“ Consolidated Net Worth ”: at any date, all amounts that would, in conformity with GAAP, be included on a consolidated balance sheet of Holdings and its Subsidiaries under stockholders’ equity at such date, but excluding (a) any non-cash adjustment to other comprehensive income for an additional minimum liability in respect of the Borrower’s pension plans so long as such adjustment does not increase or decrease Consolidated Net Income and (b) any non-cash gain or loss resulting from foreign currency translation.

 

“ Eurodollar Base Rate ”: with respect to each day during each Interest Period pertaining to a Eurodollar Loan, the rate per annum determined on the basis of the rate for deposits in the relevant currency for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on the relevant Page of the Telerate screen as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period (or, in the case of Eurodollar Loans denominated in Pounds Sterling, on the first day of such Interest Period). In the event that such rate does not appear on the relevant Page of the Telerate screen (or otherwise on such screen), the “ Eurodollar Base Rate ” shall be determined by reference to such other comparable publicly available service for displaying eurocurrency rates as may be selected by the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative Agent is offered deposits in the relevant currency at or about 11:00 A.M., local time, two Business Days prior to the beginning of such Interest Period in the interbank eurocurrency market where its eurodollar and foreign currency and exchange operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein.

 

“ Facility ”: each of (a) the Tranche A Term Commitments and the Tranche A Term Loans made thereunder (the “ Tranche A Term Facility ”), (b) the Tranche D Term Commitments and the Tranche D Term Loans made thereunder (the “ Tranche D Term Facility ”) and (c) the Revolving Commitments and the extensions of credit made thereunder (the “ Revolving Facility ”).

 

“ Fourth Amendment ”: the Fourth Amendment, dated as of December 23, 2003, to this Agreement.

 

2

“ Revolving Commitment ”: as to any Lender, the obligation of such Lender, if any, to make Revolving Loans and participate in Swingline Loans, Letters of Credit and Foreign Currency Loans in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Revolving Commitment” opposite such Lender’s name on Schedule 1.1A or in the Assignment and Acceptance pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The original amount of the Total Revolving Commitments as of the Closing Date is $75,000,000.

 

“ Revolving Percentage ”: as to any Revolving Lender at any time, the percentage which such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments (or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Revolving Extensions of Credit then outstanding constitutes of the aggregate amount of the Total Revolving Extensions of Credit then outstanding).

 

“ Term Lenders ”: the collective reference to the Tranche A Term Lenders and the Tranche D Term Lenders.

 

“ Term Loans ”: the collective reference to the Tranche A Term Loans and the Tranche D Term Loans.

 

(b) The definition of “Applicable Margin” in Section 1.1 of the Credit Agreement is hereby amended by replacing the row “Tranche C Term Loans 2.25% 3.25%” therein with the following row “Tranche D Term Loans 1.50% 2.50%” under the applicable headings.

 

(c) The definition of “Interest Period” in Section 1.1 of the Credit Agreement is hereby amended by replacing the words “Tranche C” therein with the words “Tranche D”.

 

(d) Section 1.1 of the Credit Agreement is hereby amended by inserting the following new definitions in the appropriate alphabetical order:

 

“ Affected Foreign Currency ”: as defined in Section 4.7(a).

 

“ Agreement Currency ”: as defined in Section 11.18(b).

 

“ Applicable Creditor ”: as defined in Section Section 11.18(b).

 

“ British Pounds Sterling ”: the lawful currency of the United Kingdom.

 

“ Calculation Date ”: with respect to each Foreign Currency, the fifteenth and last day of each calendar month (or, if such day is not a Business Day, the next succeeding Business Day), provided that (a) the second Business Day preceding each Borrowing Date with respect to any Foreign Currency Loans in a Foreign Currency shall also be a “Calculation Date” with respect to such Foreign

 

3

Currency and (b) solely for purposes of determining the Dollar Equivalent of the fees payable pursuant to Section 3.17(b), the Business Day immediately preceding the date of such payment shall be a “Calculation Date” with respect to each Foreign Currency.

 

“ Cash Collateral Account ”: as defined in Section 4.2(f).

 

“ Conversion Date ”: any date on which either (a) an Event of Default under Section 9(f) has occurred or (b) the Commitments shall have been terminated prior to the Revolving Termination Date and/or the Loans shall have been declared immediately due and payable, in either case pursuant to Section 9.

 

“ Designated Local Lenders ”: one or more lenders designated as such pursuant to Section 11.19.

 

“ Dollar Equivalent ”: at any time as to any amount denominated in a Foreign Currency, the equivalent amount in Dollars as determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of Dollars with such Foreign Currency on the most recent Calculation Date for such Foreign Currency.

 

“ EMU ”: Economic and Monetary Union as contemplated in the Treaty.

 

“ Euro ”: the single currency of Participating Member States introduced in accordance with the provisions of Article 109(1)(4) of the Treaty and, in respect of all payments to be made under this Agreement in Euro, means immediately available, freely transferable funds.

 

“ Exchange Rate ”: on any day, with respect to any currency, the rate at which such currency may be exchanged into any other currency, as set forth at approximately 11:00 A.M., New York City time, on such date on the Reuters World Currency Page for such currency. In the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 A.M., local time, on such date for the purchase of Dollars with the relevant currency for delivery two Business Days later; provided that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation with the Borrower, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.

 

4

“ Fee Payment Date ”: the last day of each March, June, September and December and the last day of the Revolving Commitment Period (or on such earlier date as the Revolving Commitments shall terminate as provided herein).

 

“ Foreign Currency ”: with respect to any Foreign Currency Loan, each of British Pounds Sterling, Euro and any other currency approved by the Foreign Currency Lender and the Administrative Agent, provided that, the Eurodollar Base Rate applicable to Foreign Currency Loans in any other currency approved after the Closing Date may be amended as agreed by the Foreign Currency Lender, the Administrative Agent and the Borrower.

 

“ Foreign Currency Equivalent ”: at any time as to any amount denominated in Dollars, the equivalent amount in the relevant Foreign Currency or Currencies as determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of such Foreign Currency or Currencies with Dollars on the date of determination thereof.

 

“ Foreign Currency Lender ”: The Toronto - Dominion Bank

 

“ Foreign Currency Loans ”: as defined in Section 3.15.

 

“ Foreign Currency Participants ”: with respect to each Foreign Currency Loan, the collective reference to all the Revolving Lenders.

 

“ Foreign Currency Sublimit ”: $15,000,000.

 

“ Foreign Pledge Agreements ”: the collective reference to each pledge agreement pursuant to which shares of Foreign Subsidiaries may be pledged from time to time pursuant to the Fourth Amendment, Section 7.10 or Section 11.1, in each case in form and substance reasonably satisfactory to the Administrative Agent.

 

“ Foreign Security Agreements ”: the collective reference to each security agreement, mortgage, charge, pledge or other security document granting a Lien on property of a Foreign Subsidiary to secure the obligations and liabilities of any Loan Party hereunder that may be executed and delivered to the Administrative Agent pursuant to the Fourth Amendment, Section 7.10 or 11.1, in each case in form and substance reasonably satisfactory to the Administrative Agent.

 

“ Foreign Subsidiary Guarantees ”: the collective reference to each guarantee of all or a portion of the Obligations by a Foreign Subsidiary that may be executed and delivered to the Administrative Agent pursuant to the Fourth Amendment, Section 7.10 or Section 11.1, in each case in form and substance reasonably satisfactory to the Administrative Agent.

 

“ Judgment Currency ”: as defined in Section 11.18(b).

 

“ Local Lender Designation ”: as defined in Section 11.19.

 

5

“ Participating Member State ”: each state so described in any EMU legislation.

 

“ Reset Date ”: as defined in Section 4.16(a).

 

“ Rose Acquisition ”: the acquisition of all the Capital Stock of Bemrose Group Limited, a company organized under the laws of the United Kingdom, and the simultaneous refinancing of certain existing Indebtedness of such company, pursuant to the Agreement for the Sale and Purchase of the Entire Issued Share Capital of Bemrose Group Limited, dated as of December 23, 2003, among the Rose Acquisition Subsidiary and the other parties thereto.

 

“ Rose Acquisition Subsidiary ”: Rose Holding Limited, a company organized under the laws of the United Kingdom.

 

“ Rose Subsidiaries ”: as defined in Section 7.10(e).

 

“ Security Agent ”: as defined in Section 10.12(a).

 

“ Subsidiary Borrower ”: any Subsidiary Borrower that becomes a party hereto pursuant to clause (i) of the final paragraph of Section 11.1 until such time as such Subsidiary Borrower is removed as a party hereto pursuant to clause (ii) of the final paragraph of Section 11.1.

 

“ Subsidiary Borrower Obligations ”: the principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Subsidiary Borrowers whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans made to Subsidiary Borrowers and all other obligations and liabilities of the Subsidiary Borrowers to the Administrative Agent and the Lenders, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or to the Lenders that are required to be paid by the Subsidiary Borrowers pursuant to the terms of this Agreement) or otherwise.

 

“ Tranche D Closing Date ”: the Fourth Amendment Effective Date as defined in Section 35 of the Fourth Amendment, which date is December 23, 2003.

 

“ Tranche D Prepayment Amount ”: as defined in Section 4.2(e).

 

6

“ Tranche D Term Commitment ”: as to any Lender, the obligation of such Lender, if any, to make a Tranche D Term Loan to the Borrower hereunder on the Tranche D Closing Date in a principal amount equal to the amount notified to such Lender as its “Tranche D Term Commitment” by the Lead Arranger and recorded in the Register by the Administrative Agent. The original aggregate amount of the Tranche D Term Commitments as of the Tranche D Closing Date is $140,000,000.

 

“ Tranche D Term Lender ”: each Lender that has a Tranche D Term Commitment or that holds a Tranche D Term Loan.

 

“ Tranche D Term Loan ”: as defined in Section 2.1.

 

“ Tranche D Term Percentage ”: as to any Tranche D Term Lender at any time, the percentage which such Lender’s Tranche D Term Commitment then constitutes of the aggregate Tranche D Term Commitments (or, at any time after the Tranche D Closing Date, the percentage which the aggregate principal amount of such Lender’s Tranche D Term Loans then outstanding constitutes of the aggregate principal amount of the Tranche D Term Loans of all the Tranche D Term Lenders then outstanding).

 

“ Treaty ”: the Treaty establishes the European Economic Community, being the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1986 and the Maastricht Treaty (which Treaty was signed on February 7, 1992 and came into force on November 1, 1993) and as the same may be further amended supplemented or otherwise modified.

 

“ United Kingdom ”: the United Kingdom of Great Britain and Northern Ireland.

 

“ Whitewash Procedure ”: the procedure whereby a Subsidiary organized under the laws of the United Kingdom is permitted to provide financial assistance in accordance with Sections 151-158 of the Companies Act 1985 of England and Wales, as amended, in respect of any Loans, the proceeds of which are used to purchase the Capital Stock of a Person organized under the laws of the United Kingdom.

 

SECTION 3. Amendment to Section 2.1 . Section 2.1 of the Credit Agreement is hereby amended by (a) deleting the word “and” at the end of clause (b) in the first sentence thereof and substituting “,” in lieu thereof and (b) adding the following language immediately after clause (c) thereof:

 

and (d) each Tranche D Term Lender severally agrees to make a term loan (a “ Tranche D Term Loan ”) to the Borrower on the Tranche D Closing Date in an amount equal to the Tranche D Term Commitment of such Lender.

 

7

SECTION 4. Amendment to Section 2.3 . Section 2.3 of the Credit Agreement is hereby amended by adding a new paragraph (d) at the end thereof to read in its entirety as follows:

 

(d) The Tranche D Term Loan of each Tranche D Term Lender shall mature in 11 consecutive quarterly installments, commencing on March 31, 2004 each of which shall be in an amount equal to such Lender’s Tranche D Term Percentage multiplied by the amount set forth below opposite such installment:

 

 

SECTION 5. Amendment to Section 3 . Section 3 of the Credit Agreement is hereby amended by inserting the following new subsections at the end thereof:

 

3.15 Foreign Currency Subfacility . (a) Subject to the terms and conditions hereof, the Foreign Currency Lender agrees to make loans (each, a “ Foreign Currency Loan ”) in one or more Foreign Currencies to the Subsidiary Borrowers from time to time during the Revolving Commitment Period, provided that, (i) after giving effect to any such Foreign Currency Loan, the Total Revolving Extensions of Credit at such time do not exceed the Total Revolving Commitments at such time and (ii) after giving effect to such Foreign Currency Loan and the use of proceeds thereof, the Dollar Equivalent of the aggregate outstanding principal amount of Foreign Currency Loans does not exceed the Foreign Currency Sublimit. During the Revolving Commitment Period, the Subsidiary Borrowers may borrow, prepay and reborrow Foreign Currency Loans in whole or in part, all in accordance with the terms and conditions hereof.

 

(b) The Borrower shall repay all outstanding Foreign Currency Loans on the Revolving Termination Date.

 

3.16 Procedure for Foreign Currency Loan Borrowings . (a) The Subsidiary Borrowers may borrow under Section 3.15 during the Revolving Commitment Period on any Business Day, provided that, the relevant Subsidiary

 

8

Borrower shall give the Administrative Agent and the Foreign Currency Lender irrevocable notice (which notice must be received by the Administrative Agent prior to 10:00 A.M., London time, three Business Days prior to the requested Borrowing Date) specifying (a) the amount to be borrowed and the Foreign Currency with respect thereto, (b) the requested Borrowing Date and (c) the initial Interest Periods with respect thereto. Each borrowing of Foreign Currency Loans shall be a Eurodollar Loan in an amount that is an integral of 1,000,000 units of the relevant Foreign Currency and not less than an amount equal to the Foreign Currency Equivalent of $1,000,000 in the relevant Foreign Currency. Following confirmation from the Administrative Agent that such borrowing is permitted under Section 3.15(a), the Foreign Currency Lender shall make each Foreign Currency Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 11:00 A.M., London time, to the account of the relevant Subsidiary Borrower most recently designated by it for such purposes.

 

3.17 Foreign Currency Loan Fees, Commissions and Other Charges . (a) The Borrower or the relevant Subsidiary Borrower shall pay to the Foreign Currency Lender with respect to each Foreign Currency Loan made by the Foreign Currency Lender, for the account of the Foreign Currency Lender, a fronting fee with respect to the period from and including the date of such Foreign Currency Loan to but excluding the date of repayment thereof computed at a rate per annum to be agreed upon by the Foreign Currency Lender and the Borrower on the average daily principal amount of such Foreign Currency Loan outstanding during the period for which such fee is calculated. Such fronting fee shall be payable in the applicable Foreign Currency in arrears on each Fee Payment Date to occur after the making of such Foreign Currency Loan and shall be nonrefundable.

 

(b) The Borrower or the relevant Subsidiary Borrower shall pay to the Administrative Agent for the account of the Foreign Currency Participants, a participation fee with respect to each Foreign Currency Loan for the period from and including the date of such Foreign Currency Loan to but excluding the date of repayment thereof, computed at a rate per annum equal to the Applicable Margin in respect of Eurodollar Loans that are Revolving Loans from time to time in effect on the average daily principal amount of such Foreign Currency Loan outstanding during the period for which such fee is calculated. Such fee shall be shared ratably among the Foreign Currency Participants in accordance with their respective Revolving Percentages. Such fee shall be payable in Dollars (based on the Dollar Equivalent of the amount calculated as set forth in Section 4.16.) in arrears on each Fee Payment Date to occur after the making of such Foreign Currency Loan and shall be nonrefundable.

 

(c) The Administrative Agent shall, promptly following its receipt thereof, distribute to the Foreign Currency Lender and the Foreign Currency Participants all fees received by the Administrative Agent for their respective accounts pursuant to this Section 3.17.

 

9

(d) In addition to the foregoing fees, the Borrower shall pay or reimburse the Foreign Currency Lender and the Administrative Agent for such normal and customary costs and expenses as are incurred or charged by the Foreign Currency Lender or the Administrative Agent in connection with the conversion of any Foreign Currency into Dollars pursuant to Section 3.18.

 

3.18 Participations in Foreign Currency Loans . (a) The Foreign Currency Lender irrevocably agrees to grant and hereby grants to each Foreign Currency Participant, and, to induce the Foreign Currency Lender to make Foreign Currency Loans hereunder, each such Foreign Currency Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from the Foreign Currency Lender, on the terms and conditions set forth below, for such Foreign Currency Participant’s own account and risk, an undivided interest equal to such Foreign Currency Participant’s Revolving Percentage in the Foreign Currency Lender’s obligations and rights under and in respect of each Foreign Currency Loan made by it hereunder. On any Conversion Date or on any other date if any amount in respect of the principal, interest or fees owing to the Foreign Currency Lender in respect of a Foreign Currency Loan is not paid when due in accordance with the terms of this Agreement, such unpaid amount shall be converted into an amount denominated in Dollars at the applicable Exchange Rate on the date of such conversion, as determined by the Administrative Agent in accordance with the terms hereof (and shall thereafter be denominated in Dollars for purposes of this Agreement), and each such Foreign Currency Participant hereby unconditionally and irrevocably agrees to pay to the Administrative Agent for the account of the Foreign Currency Lender upon demand an amount in Dollars equal to such Foreign Currency Participant’s Revolving Percentage of such unpaid amount denominated in Dollars. The Administrative Agent shall promptly forward such amounts to the Foreign Currency Lender. Each Foreign Currency Participant’s obligation to make the payment referred to in the immediately preceding sentence shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Foreign Currency Participant may have against the Foreign Currency Lender, the Borrower, any Subsidiary Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any Subsidiary Borrower, (iv) any breach of this Agreement or any other Loan Document by any Loan Party or any other Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Each Foreign Currency Participant shall pay the purchase price of its undivided participating interests (as determined by the Administrative Agent) by wire transfer of immediately available funds to the Administrative Agent (and the Administrative Agent shall promptly distribute such funds to the Foreign Currency Lender).

 

(b) If any amount required to be paid by any Foreign Currency Participant to the Foreign Currency Lender pursuant to Section 3.18(a) is not paid to the Foreign Currency Lender when due but is paid within three Business Days after

 

10

the date such payment is due, such Foreign Currency Participant shall pay to the Foreign Currency Lender on demand an amount equal to the product of (i) such amount, times (ii) the Eurodollar Rate for Loans denominated in Dollars during the period from and including the date such payment is required to the date on which such payment is immediately available to the Foreign Currency 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. If any such amount required to be paid by any Foreign Currency Participant pursuant to Section 3.18(a) is not in fact made available to Foreign Currency Lender by such Foreign Currency Participant within three Business Days after the date such payment is due, the Foreign Currency Lender shall be entitled to recover from such Foreign Currency Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum equal to the rate applicable thereto in accordance with the preceding sentence plus the Applicable Margin in respect of Revolving Loans which are Base Rate Loans. A certificate of the Foreign Currency Lender submitted to any Foreign Currency Participant with respect to any amounts owing under this Section shall be conclusive in the absence of manifest error.

 

(c) Whenever, at any time after the Foreign Currency Lender has received from any Foreign Currency Participant the full amount owing by such Foreign Currency Participant pursuant to and in accordance with Section 3.18(a) in respect of any Foreign Currency Loan, the Foreign Currency Lender receives any payment related to such Foreign Currency Loan (whether directly from the Borrower, any Subsidiary Borrower or otherwise, as the case may be, including proceeds of Collateral applied thereto by the Foreign Currency Lender), or any payment of interest on account thereof, the Foreign Currency Lender will distribute to such Foreign Currency Participant its pro rata share thereof; provided , however , that if any such payment received by the Foreign Currency Lender shall be required to be returned by the Foreign Currency Lender, each Foreign Currency Participant shall return to the Foreign Currency Lender the portion thereof previously distributed by the Foreign Currency Lender to it.

 

SECTION 6. Amendment to Section 4.1 . Section 4.1 of the Credit Agreement is hereby amended in its entirety to read as follows:

 

4.1. Optional Prepayments . The Borrower may at any time and from time to time prepay the Loans (other than Foreign Currency Loans), in whole or in part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent (1) not later than 11:00 A.M., New York City time, three Business Days prior to the date of prepayment, in the case of Eurodollar Loans denominated in Dollars, and (2) not later than 1:00 P.M., New York City time, on the date of prepayment, in the case of Base Rate Loans, which notice shall specify the date and amount of prepayment, whether Term Loans, Revolving Loans, Swingline Loans or any combination thereof will be repaid, and whether the prepayment is of Eurodollar Loans denominated in Dollars or Base Rate Loans; provided , that if a Eurodollar Loan denominated in Dollars is prepaid on any day

 

11

other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 4.11. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. The Borrower or the relevant Subsidiary Borrower may at any time and from time to time prepay Foreign Currency Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent and not later than 11:00 A.M., London time, three Business Days prior to the date of prepayment, which notice shall specify the date, amount and the Foreign Currency of such Loan to be prepaid; provided , that if a Foreign Currency Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 4.11. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (except in the case of Revolving Loans that are Base Rate Loans and Swingline Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans and Revolving Loans denominated in Dollars shall be in an aggregate principal amount of $1,000,000 or a whole multiple thereof. Partial prepayments of Swingline Loans shall be in an aggregate principal amount of $100,000 or a whole multiple thereof. Partial prepayments of Foreign Currency Loans shall be in an amount that is an integral of 1,000,000 units of the relevant Foreign Currency and not less than an amount equal to the Foreign Currency Equivalent of $1,000,000 in the relevant Foreign Currency.

 

SECTION 7. Amendment to Section 4.2 . Section 4.2 of the Credit Agreement is hereby amended by amending paragraph (e) in its entirety, and by adding a new paragraph (f) at the end thereof, in each case to read as follows:

 

(e) Notwithstanding anything to the contrary in Section 4.2(d) or Section 4.8, with respect to 50% of the amount of any mandatory prepayment described in Section 4.2 that is allocated to Tranche D Term Loans (such amounts, the “ Tranche D Prepayment Amount ”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche D Term Loans, as provided in paragraph (d) above, on the date specified in Section 4.2 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche D Term Lender a notice (each, a “ Prepayment Option Notice ”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche D Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “ Mandatory Prepayment Date ”) that is 10 Business Days after the date of the Prepayment Option Notice, the Tranche D Term Loans of such Lender by an amount equal to the portion of the Tranche D Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche D Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the Tranche D Term Lenders the aggregate amount necessary to prepay that portion of the outstanding Tranche D

 

12

Term Loans in respect of which such Tranche D Term Lenders have accepted prepayment as described above and (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to the portion of the Tranche D Prepayment Amount not accepted by the Tranche D Term Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans.

 

(f) If, on any Calculation Date, (i) the Dollar Equivalent of the aggregate outstanding principal amount of Foreign Currency Loans exceeds an amount equal to 105% of the Foreign Currency Sublimit or (ii) the Total Revolving Extensions of Credit exceed the Total Revolving Commitments on such date, the Borrower shall, without notice or demand, promptly, on the Business Day immediately following the Reset Date related to such Calculation Date, repay such of the outstanding Loans in an aggregate principal amount such that, after giving effect thereto, (x) the Dollar Equivalent of the aggregate outstanding principal amount of Foreign Currency Loans does not exceed the Foreign Currency Sublimit and (y) the Total Revolving Extensions of Credit do not exceed the Total Revolving Commitments, together with interest accrued to the date of such payment or prepayment on the principal so prepaid if required hereby and any amounts payable under Section 4.11 in connection therewith. Any prepayment of Revolving Loans shall first be applied to prepay any outstanding Swingline Loans. The Borrower may, in lieu of prepaying Foreign Currency Loans in order to comply with this paragraph, deposit amounts in the relevant Foreign Currency or Currencies in a Cash Collateral Account in accordance with the next succeeding sentence equal to the aggregate principal amount of Foreign Currency Loans required to be prepaid. To the extent that, after giving effect to any prepayment of Loans made pursuant to this paragraph, the Total Revolving Extensions of Credit at such time exceed the Total Revolving Commitments at such time, the Borrower shall, without notice or demand, immediately deposit in a Cash Collateral Account upon terms reasonably satisfactory to the Administrative Agent an amount in the relevant Foreign Currency equal to the amount by which Total Revolving Extensions of Credit exceed the Total Revolving Commitments. The Administrative Agent shall apply any cash deposited in the Cash Collateral Account (to the extent thereof) to repay Foreign Currency Loans at the end of the Interest Periods therefor, provided that, (x) the Administrative Agent shall release to the Borrower from time to time such portion of the amount on deposit in the Cash Collateral Account to the extent such amount is not required to be so deposited in order for the Borrower to be in compliance with this paragraph and (y) the Administrative Agent may so apply such cash at any time after the occurrence and during the continuation of an Event of Default. “ Cash Collateral Account ” means the collective reference to one or more accounts specifically established by the Borrower with the Administrative Agent for purposes of this Section 4.2 and hereby pledged to the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the right of withdrawal for application in accordance with this Section 4.2.

 

13

SECTION 8. Amendment to Section 4.3 . Section 4.3 of the Credit Agreement is hereby amended in its entirety to read as follows:

 

4.3 Conversion and Continuation Options . (a) The Borrower may elect from time to time to convert Eurodollar Loans denominated in Dollars to Base Rate Loans by giving the Administrative Agent at least two Business Days’ prior irrevocable notice of such election, provided that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert Base Rate Loans to Eurodollar Loans denominated in Dollars by giving the Administrative Agent at least three Business Days’ prior irrevocable notice of such election (which notice shall specify the length of the initial Interest Period therefor), provided that no Base Rate Loan under a particular Facility may be converted into a Eurodollar Loan denominated in Dollars when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

(b) Any Eurodollar Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower or the relevant Subsidiary Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans, provided that no Eurodollar Loan denominated in Dollars under a particular Facility may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such continuations, and provided , further , that if the Borrower shall fail to give any required notice as described above in this paragraph in respect of Eurodollar Loans denominated in Dollars or if such continuation is not permitted pursuant to the preceding proviso, such Loans shall be automatically converted to Base Rate Loans on the last day of such then expiring Interest Period and, if the Borrower or the relevant Subsidiary Borrower shall fail to give such notice of continuation of a Foreign Currency Loan which is a Eurodollar Loan, such Foreign Currency Loan shall be automatically continued for an Interest Period of one month. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

SECTION 9. Amendment to Section 4.4 . Section 4.4 of the Credit Agreement is hereby amended in its entirety to read as follows:

 

4.4 Limitations on Eurodollar Tranches . Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of Eurodollar Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to (x) $5,000,000 or a whole multiple of $1,000,000 in excess thereof, in the case of Eurodollar Loan denominated in Dollars, and (y) an integral multiple of 1,000,000 units of the relevant Foreign

 

14

Currency and not less than the Dollar Equivalent of $1,000,000, in the case of Foreign Currency Loans and (b) no more than seven Eurodollar Tranches shall be outstanding at any one time in any single currency.

 

SECTION 10. Amendment to Section 4.5 . Section 4.5 of the Credit Agreement is hereby amended by amending paragraph (a) thereof in its entirety to read as follows:

 

(a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus, in the case of Eurodollar Loans denominated in Dollars only, the Applicable Margin.

 

SECTION 11. Amendment to Section 4.6 . Section 4.6 of the Credit Agreement is hereby amended by amending paragraph (a) thereof in its entirety to read as follows:

 

(a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to Base Rate Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed and that interest on any Foreign Currency Loan denominated in British Pounds Sterling shall be calculated on the basis of a 365-day year for actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a change in the Base Rate or the Eurocurrency Reserve Requirements shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.

 

SECTION 12. Amendment to Section 4.7 . Section 4.7 of the Credit Agreement is hereby amended as follows:

 

(a) by adding a new clause (c) after the existing clause (b) to read in its entirety as follows;

 

(c) the Administrative Agent determines (which determination shall be conclusive and binding upon the Borrower and the Subsidiary Borrowers) that deposits in the applicable currency are not generally available, or cannot be obtained by the Lenders, in the applicable market (any Foreign Currency affected by the circumstances described in Section 4.7(a), (b) or (c) is referred to as an “ Affected Foreign Currency ”),

 

(b) by amending the final paragraph of such Section to read in its entirety as follows:

 

the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as practicable thereafter. If such

 

15

notice is given (y) pursuant to clause (a) or (b) of this Section 4.7 in respect of Eurodollar Loans denominated in Dollars, then (i) any Eurodollar Loans denominated in Dollars requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (ii) any Base Rate Loans that were to have been converted on the first day of such Interest Period to Eurodollar Loans denominated in Dollars shall be continued as Base Rate Loans and (iii) any outstanding Eurodollar Loans denominated in Dollars shall be converted, on the last day of the then-current Interest Period, to Base Rate Loans and (z) in respect of any Foreign Currency Loans, then (i) any such Foreign Currency Loans in an Affected Foreign Currency requested to be made on the first day of such Interest Period shall not be made and (ii) any such outstanding Foreign Currency Loans in an Affected Foreign Currency shall be due and payable on the first day of such Interest Period. Until such relevant notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans denominated in Dollars or Foreign Currency Loans in an Affected Foreign Currency shall be made or continued as such, nor shall the Borrower have the right to convert Base Rate Loans to Eurodollar Loans denominated in Dollars.

 

SECTION 13. Amendment to Section 4.8 (a) Section 4.8(a) of the Credit Agreement is hereby amended by replacing the phrase “Tranche C Term Percentages” therein with the phrase “Tranche D Term Percentages”.

 

(b) Section 4.8(b) of the Credit Agreement is hereby amended by replacing the phrase “Tranche C Term Loans” therein with the phrase “Tranche D Term Loans”.

 

SECTION 14. Amendment to Section 4.8 Section 4.8 of the Credit Agreement is hereby further amended by amending paragraphs (d) and (f) thereof to read in their entireties as follows:

 

(d) All payments (including prepayments) to be made by the Borrower or any Subsidiary Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time (or, in the case of payments in respect of Foreign Currency Loans, London time), on the due date thereof to the Administrative Agent, for the account of the relevant Lenders (and, in the case of principal or interest payments in respect of Foreign Currency Loans, to the Foreign Currency Lender), at the Funding Office, in Dollars or the applicable Foreign Currency, as the case may be, and in immediately available funds. The Administrative Agent shall distribute such payments to the relevant Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend

 

16

such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

 

(f) Unless the Administrative Agent shall have been notified in writing by the Borrower or the applicable Subsidiary Borrower prior to the date of any payment due to be made by the Borrower or such Subsidiary Borrower hereunder that the Borrower or such Subsidiary Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower or such Subsidiary Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower or the applicable Subsidiary Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate (or, in the case of amounts denominated in a Foreign Currency, its cost of funds with respect to such amount for such period). Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower or the applicable Subsidiary Borrower.

 

SECTION 15. Amendment to Section 4.9 Section 4.9 of the Credit Agreement is hereby amended to add the following new paragraph at the end thereof:

 

(d) If any Governmental Authority of the jurisdiction of any Foreign Currency (or any other jurisdiction in which the funding operations of the Foreign Currency Lender shall be conducted with respect to such Foreign Currency) shall have in effect any reserve, liquid asset or similar requirement with respect to any category of deposits or liabilities customarily used to fund loans in such Foreign Currency, or by reference to which interest rates applicable to loans in such Foreign Currency are determined, and the result of such requirement shall be to increase the cost to the Foreign Currency Lender of making or maintaining any Foreign Currency Loan in such Foreign Currency, and the Foreign Currency Lender shall deliver to the Borrower a notice requesting compensation under this paragraph and showing in reasonable detail the basis for the calculation thereof, then the Borrower will pay to the Foreign Currency Lender on each Interest Payment Date with respect to each affected Foreign Currency Loan an amount that will compensate the Foreign Currency Lender for such additional cost; provided that the Borrower shall not be required to compensate the Foreign Currency Lender pursuant to this paragraph for any amounts incurred more than six months prior to the date that the Foreign Currency Lender notifies the Borrower of the Foreign Currency Lender’s intention to claim compensation therefor; and provided further that, if the circumstances giving rise to such claim

 

17

have a retroactive effect, then such six-month period shall be extended to include the period of such retroactive effect.

 

SECTION 16. Amendment to Section 4.15 . Section 4.15 of the Credit Agreement is hereby amended in its entirety to read as follows:

 

(a) Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this Agreement and for so long as such circumstances exist, (i) the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (ii) such Lender’s Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 4.11.

 

(b) Notwithstanding any other provision of this Agreement, if, (i)(A) the adoption of any law, rule or regulation after the date of this Agreement, (B) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (C) compliance by any Lender with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement, shall make it unlawful for the Foreign Currency Lender to make or maintain any Foreign Currency Loan or to give effect to its obligations as contemplated hereby with respect to any Foreign Currency Loan, or (ii) there shall have occurred any change in national or international financial, political or economic conditions (including the imposition of or any change in exchange controls, but excluding conditions otherwise covered by this Section 4.9) which would make it impracticable for the Foreign Currency Lender to make or maintain Foreign Currency Loans denominated in the relevant currency after the date hereof to, or for the account of, the Borrower or the relevant Subsidiary Borrower, then:

 

(A) by written notice to the Borrower and to the Administrative Agent, the Foreign Currency Lender may declare that Foreign Currency Loans (in the affected currency or currencies) will not thereafter (for the duration of such unlawfulness) be made by the Foreign Currency Lender or hereunder (or be continued for additional Interest Periods), whereupon any request for a Foreign Currency Loan (in the affected currency or currencies) or to continue a Foreign Currency Loan (in the affected currency or currencies), as the case may be, for an additional Interest Period) shall, be of no force and effect, unless such declaration shall be subsequently withdrawn; and

 

18

(B) all outstanding Foreign Currency Loans (in the affected currency or currencies), made by the Foreign Currency Lender shall be repaid on the last day of the then current Interest Period with respect thereto or, if earlier, the date on which the applicable notice becomes effective in accordance with paragraph (c) of this Section.

 

(c) For purposes of Section 4.15(b), a notice to the Borrower by the Foreign Currency Lender shall be effective as to each Foreign Currency Loan, if lawful, on the last day of the Interest Period currently applicable to such Foreign Currency Loan; in all other cases such notice shall be effective on the date of receipt thereof by the Borrower.

 

SECTION 17. Amendment to Section 4 . Section 4 of the Credit Agreement is hereby amended to add the following new Section at the end thereof:

 

4.16. Foreign Currency Exchange Rate . (a) No later than 1:00 P.M., New York City time, on each Calculation Date with respect to a Foreign Currency, the Administrative Agent shall determine the Exchange Rate as of such Calculation Date with respect to such Foreign Currency, provided that, upon receipt of a borrowing request pursuant to Section 3.16, the Administrative Agent shall determine the Exchange Rate with respect to the relevant Foreign Currency in accordance with the foregoing (it being acknowledged and agreed that the Administrative Agent shall use such Exchange Rate for the purposes of determining compliance with Section 3.15 with respect to such borrowing request). The Exchange Rates so determined shall beco