Exhibit 10.2
EXECUTION COPY
FIRST AMENDMENT
TO REVOLVING CREDIT AND GUARANTY
AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING
CREDIT AND GUARANTY AGREEMENT (this “Amendment” ) is dated
as of September 11, 2009 and is entered into by and among
NEWPAGE CORPORATION , a Delaware corporation (
“NewPageCo” ), NEWPAGE HOLDING
CORPORATION , a Delaware corporation (
“NewPageHoldCo” ), the GUARANTORS listed
on the signature pages hereto, CERTAIN FINANCIAL
INSTITUTIONS listed on the signature pages hereto (each, a
“Lender” ), and GOLDMAN SACHS CREDIT PARTNERS
L.P. (“ GSCP ”), as Administrative Agent (
“Administrative Agent” ), and is made with
reference to that certain REVOLVING CREDIT AND GUARANTY
AGREEMENT dated as of December 21, 2007 (the
“Credit Agreement” ) by and among NewPageCo,
NewPageHoldCo, the subsidiaries of NewPageCo named therein, the
Lenders, the Administrative Agent and the other Agents named
therein. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Credit Agreement
after giving effect to this Amendment.
RECITALS
WHEREAS, the Credit Parties have requested that Requisite
Lenders agree to amend certain provisions of the Credit Agreement
as provided for herein; and
WHEREAS, subject to certain conditions, Requisite Lenders
are willing to agree to such amendments relating to the Credit
Agreement.
NOW, THEREFORE
, in consideration of the premises
and the agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
SECTION I. AMENDMENTS TO CREDIT
AGREEMENT
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1.1
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Amendments to Section 1:
Definitions .
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A. Section 1.1 of the Credit
Agreement is hereby amended by adding the following definitions in
proper alphabetical sequence:
“Accepting
Lender” as defined
in Section 2.2(c).
“ Extension Offer
” as defined in Section 2.2(c).
“First
Amendment” means
that certain First Amendment to Revolving Credit and Guaranty
Agreement dated as of September 11, 2009 among NewPageCo,
NewPageHoldCo, Administrative Agent, the financial institutions
party thereto and the Guarantors listed on the signature pages
thereto; provided , that solely for the purpose of
“Consolidated Adjusted EBITDA”, “Consolidated
Cash Interest Expense” and “Consolidated Excess Cash
Flow”, the term “First Amendment” shall also mean
the First Amendment to Term Loan Credit and Guaranty Agreement,
dated as of September 11, 2009, entered into under the
NewPageCo First Lien Term Loan Agreement.
“First Amendment Effective
Date” means the
date of satisfaction of the conditions referred to in Section IV of
the First Amendment.
“Parity Lien
Debt” has the
meaning set forth in the Collateral Trust Agreement.
“ Permitted Extension
Amendment ” means (i) an extension of the Revolving
Commitment Termination Date with respect to the Revolving
Commitments of Accepting Lenders and, if applicable, an increase in
the Applicable Margin and Applicable Revolving Commitment Fee
Percentage with respect to the Revolving Loans and Revolving
Commitments of all Lenders and the payment of additional fees to
the Accepting Lenders, in each case subject to the requirements set
forth in Section 2.2(c) ( provided that any
such increase in the Applicable
Margin or Applicable Revolving Commitment Fee Percentage shall be
paid to all Lenders irrespective of whether such Lenders agree to
extend the maturity date of their Revolving Loans or Revolving
Commitments) or (ii) the extension of a commitment to provide
an additional revolving credit facility under this Agreement, on
substantially the same terms and conditions as the Revolving
Commitments and the Revolving Loans, commencing on the Revolving
Commitment Termination Date and ending on such date as agreed to by
the Lenders providing such commitment, and the payment to the
lenders providing such commitment of commitment fees in connection
therewith (which fee shall be payable directly by
NewPageCo).
“ Priority Lien Debt
” has the meaning set forth in the Collateral Trust
Agreement.
“ Unrestricted Cash
” means, as of any date, the aggregate amount of cash and
Cash Equivalents on the consolidated balance sheet of NewPageHoldCo
and its Subsidiaries that are Guarantor Subsidiaries which is free
and clear of all Liens (other than Permitted Collateral Liens),
other than segregated cash and Cash Equivalents the use of which,
as of such date, is restricted by law or Contractual Obligation to
any specific purpose.
“ Unsecured Hedge
Agreement ” means (i) an unsecured Interest Rate
Agreement or an unsecured Currency Agreement entered into in the
ordinary course of NewPageCo’s or any of its
Subsidiaries’ businesses or (ii) a commodity futures
contract, forward contract, option to purchase or sell a commodity,
or option, warrant or other right with respect to a commodity
futures contract or other similar agreement or arrangement that, in
each case, is unsecured and is entered into for the purpose of
hedging the risk of fluctuations in commodities prices associated
with the businesses of NewPageCo and its Subsidiaries and not for
speculative purposes; it being understood that the issuance of a
letter of credit for the benefit of the counterparty to such
Interest Rate Agreement, Currency Agreement or commodity contract,
agreement, or arrangement and for the account of NewPageCo or one
of its Subsidiaries, in any such case to provide credit support for
the obligations of NewPageCo or such Subsidiary thereunder, shall
not cause such Interest Rate Agreement, Currency Agreement or
commodity contract, agreement or arrangement to be
secured.
B. Section 1.1 of the Credit
Agreement is hereby amended by amending and restating the following
definitions in their entireties:
“Applicable
Margin” and
“Applicable Revolving Commitment Fee Percentage”
mean (i) with respect to Revolving Loans that are Eurodollar
Rate Loans and the Applicable Revolving Commitment Fee Percentage,
a percentage per annum set forth in the table below:
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Applicable Margin for
Revolving Loans
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Applicable Revolving
Commitment
Fee Percentage
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3.50%
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0.50%
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and (ii) with respect to Swing
Line Loans and Revolving Loans that are Base Rate Loans,
(a) the Applicable Margin for Eurodollar Rate Loans as set
forth in above, minus (b) 1.00% per annum.
“ Consolidated Cash
Interest Expense ” means, for any period, Consolidated
Interest Expense for such period, excluding (i) any amount not
payable in Cash and (ii) any one time Consolidated Interest
Expense of NewPageHoldCo and its Subsidiaries payable in Cash which
is incurred in connection with the First Amendment; provided that
for calculations for any four Fiscal Quarter period ending on or
prior to September 30, 2008, Consolidated Cash Interest
Expense shall be deemed to be the product of (i) such amounts
from and including the Closing Date through and including the last
day of the applicable period, respectively, multiplied by
(ii) a fraction of which the numerator is 365 and the
denominator of which is the number of days elapsed in the period
from and including the Closing Date though and including the last
day of the applicable period.
“Consolidated Excess Cash
Flow” means, for
any period, an amount (if positive) equal to: (i) the sum,
without duplication, of the amounts for such period of
(a) Consolidated Adjusted EBITDA, plus (b) the
Consolidated Working Capital Adjustment (as such term is defined in
the NewPageCo First Lien Term Loan
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Agreement), minus
(ii) the sum, without duplication, of the amounts for such
period of (a) voluntary and scheduled repayments of
Consolidated Total Debt (excluding (x) repayments of Revolving
Loans or Swing Line Loans except to the extent the Revolving
Commitments are permanently reduced in connection with such
repayments, and (y) for avoidance of doubt, any purchases,
retirements or cancellations of Indebtedness permitted by
Section 6.5(e)(iv) and any repurchases of Term Loans, as
defined in the NewPageCo First Lien Term Loan Agreement, by
NewPageCo in accordance with the terms of Section 10.6(i)
thereof), (b) Consolidated Capital Expenditures (net of any
proceeds of (y) any permitted related financings with respect
to such expenditures and (z) any sales of assets used to
finance such expenditures), (c) Consolidated Cash Interest
Expense, (d) provisions for current taxes based on income of
NewPageHoldCo and its Subsidiaries and payable in cash with respect
to such period, (e) any cash expenses, charges or losses added
to Consolidated Net Income in determining Consolidated Adjusted
EBITDA for such period and (f) any one time Consolidated
Interest Expense of NewPageHoldCo and its Subsidiaries payable in
Cash which is incurred in connection with the First Amendment and
is deducted from the calculation of Consolidated Cash Interest
Expense.
“Consolidated Senior
Debt” means, as at
any date of determination, the sum of Indebtedness under this
Agreement plus Priority Lien Debt (as defined in the
Collateral Trust Agreement), in each case, appearing on a balance
sheet of NewPageHoldCo and its Subsidiaries as of such date
determined on a consolidated basis in accordance with
GAAP.
C. Section 1.1 of the Credit
Agreement is hereby amended by restating clause (5) of the
definition of “Consolidated Adjusted EBITDA” to
read as follows:
“(5) transaction costs
incurred in connection with the Closing Date Related Transactions,
any Permitted Acquisition and the First Amendment, to the extent
such costs were deducted in computing such Consolidated Net Income;
plus”
D. Section 1.1 of the Credit
Agreement is hereby amended by restating clause (C) in the
second sentence of the definition of “Indebtedness” to
read as follows:
“(C) the principal amount of
the Indebtedness under any Hedge Agreement and Unsecured Hedge
Agreement at any time shall be equal to the amount payable as a
result of the termination of such Hedge Agreement or Unsecured
Hedge Agreement, as applicable, at such time.”
E. Section 1.1 of the Credit
Agreement is hereby amended by restating clause (3) of the
definition of “Net Income” to read as
follows:
“(3) any unrealized non-cash
gains or losses in respect of Hedge Agreements and Unsecured Hedge
Agreements (including those resulting from the application of FAS
133), to the extent that such gains or losses are deducted in
computing Net Income.”
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1.2
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Amendment
to Section 2.2 .
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Section 2.2 is hereby amended
by inserting a new clause (c) immediately after clause
(b) as follows:
“(c) Extension Offers .
NewPageCo may, by written notice to the Administrative Agent, make
an offer (each, an “ Extension Offer ”) to all
Lenders in connection with one or more Permitted Extension
Amendments pursuant to procedures specified by the Administrative
Agent and reasonably acceptable to NewPageCo. Such notice shall be
reasonably satisfactory to the Administrative Agent and shall set
forth the terms and conditions of the requested Permitted Extension
Amendment. Permitted Extension Amendments shall become effective
only with respect to the Loans and Revolving Commitments of the
Lenders that accept the applicable Extension Offer (such Lenders,
the “ Accepting Lenders ”). Without the consent
of any other Lenders, the Administrative Agent may effect such
amendments to this Agreement and the other Credit Documents as may
be necessary or appropriate, as determined by the Administrative
Agent, to effect any Permitted Extension Amendment.
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1.3
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Amendments to
Section 5.16(g) .
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Section 5.16(g) is hereby
amended and restated in its entirety to read as follows:
(g) collateral appraisals and
Inventory Appraisals to be conducted, in each case, one time per
annum (or for any year in which Excess Availability for any ten
(10) consecutive day period shall be less than $105,000,000,
two times per annum), or, following the occurrence and during the
continuation of an Event of Default or when the Total Utilization
of Revolving Commitments shall exceed the Revolving Commitments or
the Borrowing Base then in effect, more frequently at Collateral
Agent’s reasonable request, by an auditor or outside
appraisal firm, and in form, scope and substance, reasonably
satisfactory to the Collateral Agent and Administrative
Agent;
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1.4
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Amendments to Section 6.1
.
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A. Section 6.1(l) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
“(l) Indebtedness under Hedge
Agreements required pursuant to, and entered into in accordance
with, Section 5.12 or any Hedge Agreements and Unsecured Hedge
Agreements entered into in the ordinary course of business and not
for speculative purposes; provided that any Hedge Agreement
or Unsecured Hedge Agreement that could result in any uncovered
short positions with respect to commodities shall not be permitted
pursuant to this clause (l);”
B. Section 6.1(p) of the Credit
Agreement is hereby amended by deleting the reference to
“$100,000,000” and inserting “$50,000,000”
in place thereof.
C. Clause (y) of the proviso
contained in Section 6.1(q) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
“(y) exceed in a principal
amount the Indebtedness being renewed, extended or refinanced,
original issue discount with respect to such new Indebtedness,
accrued cash interest payable thereon, capitalized interest
permitted or required to be paid thereunder, premium (if any)
thereon, other reasonable amounts necessary to accomplish such
extension, renewal or refinancing, and reasonable fees and expenses
incurred in connection therewith, or”
D. Section 6.1 of the Credit
Agreement is hereby amended by (a) deleting clause
(u) thereof, (b) replacing “; and” at the end
of clause (t) with a period, and (c) inserting
“and” at the end of clause (s).
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1.5
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Amendments to Section 6.2
.
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Section 6.2(a) of the Credit
Agreement is hereby amended to delete the phrase “and
Indebtedness incurred pursuant to Section 6.1(u)”
contained therein.
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1.6
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Amendments to Section 6.5
.
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A. Section 6.5(a)(iii) is
amended and restated to read as follows:
“NewPageCo may make voluntary
prepayments of principal under Section 2.13 of the NewPage
First Lien Term Loan Agreement and may make repurchases of Term
Loans as defined in the NewPage First Lien Term Loan Agreement
pursuant to Section 10.6(i) thereof so long as (A) both
before and after giving effect to any such voluntary prepayment, no
Default or Event of Default shall have occurred and be continuing,
(B) solely in the case of a repurchase under such
Section 10.6(i), as of the most recently completed Fiscal
Quarter for which financial statement have been delivered pursuant
to the terms of this Agreement the Senior Leverage Ratio was less
than 3.00 to 1 and (C) after giving effect to any such
prepayment, Excess Availability shall be at least
$75,000,000,”
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B. Section 6.5(e) is amended by
(a) inserting the word “and” at the end of clause
(iii) and (b) inserting a new clause
(iv) immediately after clause (iii) as
follows:
“ (iv) repurchase, redeem
or otherwise acquire, and in each case, retire, any Senior Secured
Floating Rate Notes, any Senior Secured Fixed Rate Notes or any
2007 Senior Secured Fixed Rate Notes in an aggregate amount paid in
connection therewith not to exceed (A) $100,000,000 in the
aggregate so long as the Senior Leverage Ratio as of the end of the
most recently ended Fiscal Quarter prior to such repurchase,
redemption, acquisition or retirement was greater than 2.00 to 1.00
but less than or equal to 2.50 to 1.00 or (B) $150,000,000 in
the aggregate so long as the Senior Leverage Ratio as of the end of
the most recently ended Fiscal Quarter prior to such repurchase,
redemption, acquisition or retirement was less than or equal to
2.00 to 1.00; provided that Restricted Junior Payments made under
this clause (e)(iv) shall constitute usage of the basket set forth
in clause (e)(iii).”
C. Section 6.5(k) is hereby
amended and restated in its entirety to read as follows:
“(k) at any time following
delivery of the Credit Parties’ financial statements for the
Fiscal Quarter ending June 30, 2010 in accordance with
Section 5.1(b) , so long as no Default or Event of
Default shall have occurred and be continuing or shall be caused
thereby, upon the occurrence of an IPO (and substantially
concurrently therewith, or in the case of an IPO that occurs prior
to the delivery of the financial statements for the Fiscal Quarter
ending June 30, 2010, substantially concurrently with such
delivery), NewPageHoldCo may use the proceeds of such IPO to
(1) prepay the NewPageHoldCo PIK Notes and/or (2) make
Restricted payments to SuperHoldco to enable SuperHoldco to prepay
the SuperHoldco PIK Notes (so long as SuperHoldco applies the
proceeds of such Restricted Payment to such
purpose).”
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1.7
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Amendment to
Section 6.7.
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Section 6.7(k) of the Credit
Agreement is