Exhibit 10.1
FOURTH AMENDMENT TO CREDIT
AGREEMENT
FOURTH AMENDMENT TO CREDIT AGREEMENT
(this “ Fourth Amendment ”), dated as of
May 28, 2009, among GRAHAM PACKAGING HOLDINGS COMPANY, a
Pennsylvania limited partnership (“ Holdings ”),
GRAHAM PACKAGING COMPANY, L.P., a Delaware limited partnership (the
“ Borrower ”), GPC CAPITAL CORP. I, a Delaware
corporation (the “ Co-Borrower ”), the Lenders
from time to time party to the Credit Agreement referred to below,
and DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as administrative agent
(in such capacity, the “ Administrative Agent ”)
for the Lenders. Unless otherwise indicated, all capitalized terms
used herein and not otherwise defined shall have the respective
meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S
S E T H :
WHEREAS, Holdings, the Borrower, the
Co-Borrower, the Lenders from time to time party thereto, and the
Agents are parties to a Credit Agreement, dated as of
October 7, 2004 (as amended, modified and/or supplemented to,
but not including, the date hereof, the “ Credit
Agreement ”); and
WHEREAS, the parties hereto wish to
enter into certain agreements and amendments regarding the Credit
Agreement as herein provided;
NOW, THEREFORE, it is
agreed:
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I.
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Amendments
to the Credit Agreement .
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1. The definition of “ ABR
Margin ” appearing in Section 1.01 of the Credit
Agreement is hereby amended by deleting the text “B Term
Loans,” appearing therein and inserting “Term
Loans,” in lieu thereof.
2. The definition of “ ABR
Term Loan ” appearing in Section 1.01 of the Credit
Agreement is hereby amended by deleting the text “any B Term
Loan” appearing therein and inserting the text “any
Term Loan” in lieu thereof.
3. The definition of “
Alternate Base Rate ” appearing in Section 1.01
of the Credit Agreement is hereby amended to read in its entirety
as follows:
“ Alternate Base Rate
” shall mean, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day,
(b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1% and (c) the Adjusted LIBO Rate for
a Eurodollar Loan with a one-month interest period commencing on
such day plus 1.0%. If for any reason the Administrative
Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain
the Federal Funds Effective Rate, including the failure of the
Federal Reserve Bank of New York to publish rates or the
inability of the Administrative Agent to obtain quotations in
accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the preceding
sentence until the circumstances giving rise to such inability no
longer exist. For purposes of this definition, the Adjusted LIBO
Rate shall be determined using
the LIBO Rate as otherwise
determined by the Administrative Agent in accordance with the
definition of LIBO Rate, except that (x) if a given day is a
Business Day, such determination shall be made on such day (rather
than two Business Days prior to the commencement of an Interest
Period) or (y) if a given day is not a Business Day, the LIBO
Rate for such day shall be the rate determined by the
Administrative Agent pursuant to preceding clause (x) for the
most recent Business Day preceding such day. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Federal
Funds Effective Rate or such Adjusted LIBO Rate shall be effective
on the effective date of such change in the Prime Rate, the Federal
Funds Effective Rate or such Adjusted LIBO Rate,
respectively.
4. The definition of “
Applicable Percentage ” appearing in Section 1.01
of the Credit Agreement is hereby amended to read in its entirety
as follows:
“ Applicable Percentage
” of any Extending Revolving Credit Lender at any time shall
mean the percentage of the Total Extending Revolving Credit
Commitment represented by such Lender’s Extending Revolving
Credit Commitment. In the event the Extending Revolving Credit
Commitments shall have expired or been terminated, the Applicable
Percentages shall be determined on the basis of the Extending
Revolving Credit Commitments most recently in effect, but giving
effect to any assignments pursuant to Section 9.04.
5. The definition of “ B
Term Loans ” appearing in Section 1.01 of the Credit
Agreement is hereby amended by deleting the text “or
2.23” appearing therein.
6. The definition of “
Capital Expenditures ” appearing in Section 1.01
of the Credit Agreement is hereby deleting the text “B Term
Loans” appearing therein and inserting the text “Term
Loans” in lieu thereof.
7. The definition of “
Commitments ” appearing in Section 1.01 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
“ Commitments ”
shall mean, with respect to any Lender, such Lender’s
Non-Extending Revolving Credit Commitment, Extending Revolving
Credit Commitment, B Term Loan Commitments, C Term Loan
Commitments, Swingline Loan Commitment, Incremental C Term Loan
Commitment or any combination thereof (as the context requires)
and, with respect to any Fronting Bank, its Revolving L/C
Commitment.
8. The definition of “
Eurodollar Term Loan ” appearing in Section 1.01
of the Credit Agreement is hereby amended by deleting the text
“any B Term Loan” appearing therein and inserting
“any Term Loan” in lieu thereof.
9. The definition of “
Excess Cash Flow ” appearing in Section 1.01 of
the Credit Agreement is hereby amended by deleting the text
“B Term Loans” appearing therein and inserting
“Term Loans” in lieu thereof.
10. The definition of “
Incremental Commitment Request Requirements ”
appearing in Section 1.01 of the Credit Agreement is hereby
amended to read in its entirety as follows:
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“ Incremental Commitment
Request Requirements ” shall mean, with respect to any
request for an Incremental C Term Loan Commitment made pursuant to
Section 2.23, the satisfaction of each of the following
conditions on the date of such request: (x) no Default or
Event of Default then exists or would result therefrom (for
purposes of such determination, assuming the relevant Loans in an
aggregate principal amount equal to the full amount of Incremental
C Term Loan Commitments, as the case may be, then requested had
been incurred, and the proposed Permitted Business Acquisition (if
any) to be financed with the proceeds of such Loans had been
consummated, on such date of request) and all of the
representations and warranties contained herein and in the other
Loan Documents are true and correct in all material respects at
such time (unless stated to relate to a specific earlier date, in
which case such representations and warranties shall be true and
correct in all material respects as of such earlier date); and
(y) if all of the proceeds of C Term Loans to be provided
pursuant to the requested Incremental C Term Loan Commitment will
not be used to repay outstanding B Term Loans, the Senior Secured
Net Leverage Ratio on the last day of the Test Period most recently
ended prior to the date of the request for Incremental C Term Loan
Commitments, as the case may be, shall not exceed 4.50:1.00, with
such calculation to be made on a Pro Forma Basis, as if the
relevant Loans to be made pursuant to such Incremental C Term Loan
Commitments (in each case, assuming the full utilization thereof)
had been incurred, and the proposed Permitted Business Acquisition
(if any) to be financed with the proceeds of such Loans (as well as
other Permitted Business Acquisitions theretofore consummated after
the first day of such Test Period) had occurred, on the first day
of such Test Period.
11. The definition of “
Lender Default ” appearing in Section 1.01 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
“ Lender Default
” shall mean (i) the wrongful refusal (which has not
been retracted) of a Lender or the failure of such Lender to make
available its portion of any Borrowing, to fund Refunded Swingline
Loans or to fund its portion of any unreimbursed payment under
Section 2.20(a)(iv), (ii) such Lender having become the
subject of a bankruptcy or insolvency proceeding or a takeover by a
regulatory authority, or (iii) such Lender having notified the
Administrative Agent, the Swingline Lender, any Fronting Bank
and/or any Loan Party (x) that it does not intend to comply
with its obligations under Sections 2.01(b) or (c) or 2.20 in
circumstances where such non-compliance would constitute a breach
of such Lender’s obligations under the respective Section or
(y) of the events described in preceding clause (ii);
provided that, for purposes of (and only for purposes of)
Section 2.01(c), Section 2.12(h), Section 2.20(a)
and any documentation entered into pursuant to the Back-Stop
Arrangements (and the term “Defaulting Lender” as used
therein), the term “Lender Default” shall also include,
as to any Lender, (i) any Affiliate of such Lender that has
“control” (within the meaning provided in the
definition of “Affiliate”) of such Lender having become
the subject of a bankruptcy or insolvency proceeding or a takeover
by a regulatory authority, (ii) any previously cured
“Lender Default” of such Lender under this Agreement,
unless such Lender Default has ceased to exist for a period of at
least 90 consecutive days, (iii) any default by such Lender
with respect to its obligations under any other credit facility to
which it is a party and which the Swingline Lender, any Fronting
Bank or the Administrative Agent believes in good faith has
occurred and is continuing, and (iv) the failure of such
Lender to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment with
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respect to a Letter of Credit
pursuant to Section 2.20(a)(iv) or Section 2.20(a)(v)
within one (1) Business Day of the date (x) the
Administrative Agent (in its capacity as a Lender) or
(y) Lenders constituting the Majority Lenders with Extending
Revolving Credit Commitments has or have, as applicable, funded its
or their portion thereof.
12. The definition of “
LIBO Rate ” appearing in Section 1.01 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
“ LIBO Rate ”
shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the greater of (i) the rate at which dollar
deposits approximately equal in principal amount to the
Administrative Agent’s portion of such Eurodollar Borrowing
and for a maturity comparable to such Interest Period are offered
to the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at
approximately 11:00 a.m., New York time, two Business
Days prior to the commencement of such Interest Period and
(ii) with respect to C Term Loans and Extending Revolving
Loans only, 2.50%.
13. The definition of “
LIBOR Margin ” appearing in Section 1.01 of the
Credit Agreement is hereby amended by deleting the text “B
Term Loans and Revolving Loans” appearing therein and
inserting the text “B Term Loans, C Term Loans, Non-Extending
Revolving Loans and Extending Revolving Loans” in lieu
thereof.
14. The definition of “
Loans ” appearing in Section 1.01 of the Credit
Agreement is hereby amended by deleting the text “B Term
Loans,” appearing therein and inserting the text “Term
Loans,” in lieu thereof.
15. The definition of “
Permitted Cure Security ” appearing in
Section 1.01 of the Credit Agreement is hereby amended by
deleting the text “B Term Loan Maturity Date” appearing
therein and inserting the text “the then latest Maturity
Date” in lieu thereof.
16. The definition of “
Permitted Refinancing Indebtedness ” appearing in
Section 1.01 of the Credit Agreement is hereby amended to read
in its entirety as follows:
“ Permitted Refinancing
Indebtedness ” shall mean any Indebtedness of Holdings or
a Subsidiary of Holdings issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace,
defease or refund (collectively, to “ Refinance
”), Indebtedness permitted by Sections 6.01(b) (only with
respect to the B Term Loans outstanding on the Fourth Amendment
Effective Date after giving effect to the conversions and
repayments thereof pursuant to Section 2.01(e)), 6.01(j) or
(p) (or previous refinancings thereof constituting Permitted
Refinancing Indebtedness) of Holdings or such Subsidiary of
Holdings, as the case may be, provided that (i) the
principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness so
Refinanced ( plus , in the case of Sections 6.01(j) and (p),
unpaid accrued interest and premium thereon), (ii) the average
life to maturity of such Permitted Refinancing Indebtedness is
greater than or equal to that of the Indebtedness being Refinanced,
(iii) if the Indebtedness being Refinanced is subordinated in
right of payment to the Obligations under this Agreement, such
Permitted Refinancing Indebtedness shall be subordinated in right
of payment to such Obligations on terms at least as favorable
to
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the Lenders as those contained in
the documentation governing the Indebtedness being Refinanced,
(iv) no Permitted Refinancing Indebtedness shall have
different obligors, or greater guarantees or security (except as
otherwise expressly permitted herein), than the Indebtedness being
Refinanced, (v) if the Indebtedness being Refinanced is
secured by any collateral (whether equally and ratably with, or
junior to, the Secured Parties or otherwise), such Permitted
Refinancing Indebtedness may be secured by such collateral
(including any collateral pursuant to after-acquired property
clauses to the extent any such collateral secured the Indebtedness
being Refinanced) on terms no less favorable to the Secured Parties
than those contained in the documentation governing the
Indebtedness being Refinanced, (vi) such Indebtedness (other
than Indebtedness permitted by Section 6.01(j)) shall not
require any repayments of principal that are earlier than
(x) any repayments that are required under the Indebtedness
being Refinanced and (y) in the case of Indebtedness
refinancing the Senior Notes, the B Term Loans or any refinancing
in respect thereof, 90 days after the C Term Loan Maturity Date,
(vii) in the case of Indebtedness permitted under
Section 6.01(p), no Permitted Refinancing Indebtedness shall
contain covenants, defaults or events of default that are
materially more adverse to Holdings and its Subsidiaries, or the
Lenders, than those contained in such Indebtedness being Refinanced
and (viii) in the case of Indebtedness refinancing the B Term
Loans or any refinancing thereof (but not for any other purpose),
such Indebtedness may be secured by Liens on Collateral (but no
other assets) that are pari passu to the Liens securing the
Obligations; provided that such Indebtedness is subject to
intercreditor arrangements that are in form and substance
satisfactory to the Administrative Agent. Notwithstanding the
foregoing, if any Permitted Refinancing Indebtedness is incurred to
Refinance the Second-Lien Loans or any previous issue of Permitted
Refinancing Indebtedness incurred pursuant to sub-clause
(x) of Section 6.01(p), then unless such Permitted
Refinancing Indebtedness is unsecured, each Loan Party, the
Administrative Agent, the Collateral Agent and the administrative
agent and collateral agent for such Permitted Refinancing
Indebtedness shall enter into a new intercreditor agreement in the
form of Exhibit I hereto, appropriately modified to reflect the new
issue of Permitted Refinancing Indebtedness and with such other
changes, if any, as may be satisfactory to the Administrative Agent
and the Collateral Agent (with each such intercreditor agreement
being herein called an “ Additional Intercreditor
Agreement ”).
17. The definition of “
Revolving Credit Borrowing ” appearing in
Section 1.01 of the Credit Agreement is hereby amended to read
in its entirety as follows:
“ Revolving Credit
Borrowing ” shall mean a Borrowing comprised of Extending
Revolving Credit Borrowings or Non-Extending Revolving Credit
Borrowings, as the case may be.
18. The definition of “
Revolving Credit Commitment ” appearing in
Section 1.01 of the Credit Agreement is hereby amended to read
in its entirety as follows:
“ Revolving Credit
Commitment ” shall mean, with respect to each Lender, its
Non-Extending Revolving Credit Commitment (if any) and its
Extending Revolving Credit Commitment (if any).
19. The definition of “
Revolving Credit Maturity Date ” appearing in
Section 1.01 of the Credit Agreement is hereby amended to read
in its entirety as follows:
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“ Revolving Credit Maturity
Date ” shall mean the Non-Extending Revolving Credit
Maturity Date.
20. The definition of “
Revolving L/C Exposure ” appearing in
Section 1.01 of the Credit Agreement is hereby amended to read
in its entirety as follows:
“ Revolving L/C
Exposure ” shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at
such time plus (b) the aggregate principal amount of
all L/C Payments that have not yet been reimbursed at such time.
The Revolving L/C Exposure of any Extending Revolving Credit Lender
at any time shall mean its Applicable Percentage of the aggregate
Revolving L/C Exposure at such time.
21. The definition of “
Revolving Loans ” appearing in Section 1.01 of
the Credit Agreement is hereby amended to read in its entirety as
follows.
“ Revolving Loans
” shall mean the Non-Extending Revolving Loans and the
Extending Revolving Loans.
22. The definition of “
Security Documents ” appearing in Section 1.01 of
the Credit Agreement is hereby amended to read in its entirety as
follows:
“ Security Documents
” shall mean the Mortgages, the Security Agreement, the
Pledge Agreement, and each of the security agreements and other
instruments and documents executed and delivered pursuant to any of
the foregoing or pursuant to Section 5.11; provided, that any
cash collateral or other agreements entered into pursuant to the
Back-Stop Arrangements shall constitute “Security
Documents” solely for purposes of (x) Section 3.02
and (y) the term “Loan Documents” as used in
Sections 6.01(b), 6.02(b), 6.09 and 9.05.
23. The definition of “
Senior Secured Net Leverage Ratio ” appearing in
Section 1.01 of the Credit Agreement is hereby amended by
deleting the text “Senior Secured Indebtedness” and
inserting the text “Senior Secured Net Indebtedness” in
lieu thereof.
24. The definition of “
Special Capital Contributions ” appearing in
Section 1.01 of the Credit Agreement is hereby amended by
deleting the text “B Term Loans” appearing therein and
inserting the text “Term Loans” in lieu
thereof.
25. The definition of “
Term Borrowing ” appearing in Section 1.01 of the
Credit Agreement is hereby amended by inserting the text “or
C Term Loans” immediately following the text “B Term
Loans” appearing therein.
26. The definition of “
Total Revolving Credit Commitment ” appearing in
Section 1.01 is hereby amended to read in its entirety as
follows:
“ Total Revolving Credit
Commitment ” shall mean, at any time, the aggregate
amount of the Total Non-Extending Revolving Credit Commitment and
the Total Extending Revolving Credit Commitment.
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27. The definition of “
Tranche ” appearing in Section 1.01 is hereby
amended to read in its entirety as follows:
“ Tranche ” shall
mean the respective facility and commitments utilized in making
Loans hereunder, with there being five separate Tranches on the
Fourth Amendment Effective Date, i.e. , B Term Loans, C Term
Loans, Non-Extending Revolving Loans, Extending Revolving Loans and
Swingline Loans.
28. Section 1.01 of the Credit
Agreement is hereby further amended by (i) deleting the
definitions of “ Incremental B Term Loan Commitment
Agreement ”, “ Incremental B Term Loan
Commitments ”, “ Incremental B Term Loan
Lender ”, “ Incremental Revolving Credit
Commitment Agreement ”, “ Incremental Revolving
Credit Commitments ”, “ Incremental Revolving
Lender ” and “ Third Amendment Mortgage
Amendments ” in their entirety and (ii) inserting
the following new definitions in the appropriate alphabetical
order:
“ Aggregate Extending
Percentage ” shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is the Total
Extending Revolving Credit Commitment and the denominator of which
is the Total Revolving Credit Commitment.
“ Aggregate Extending
Revolving Credit Exposure ” shall mean the aggregate
amount of the Lenders’ Extending Revolving Credit
Exposures.
“ Aggregate Non-Extending
Percentage ” shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is the Total
Non-Extending Revolving Credit Commitment and the denominator of
which is the Total Revolving Credit Commitment.
“ Aggregate Non-Extending
Revolving Credit Exposure ” shall mean the aggregate
amount of the Lenders’ Non-Extending Revolving Credit
Exposures.
“ Available Extending
Revolving Credit Commitments ” shall mean, at any time,
an amount equal to the excess, if any, of (i) the Total
Extending Revolving Credit Commitment then in effect over
(ii) the Aggregate Extending Revolving Credit Exposure at such
time.
“ Back-Stop
Arrangements ” shall mean, collectively, Letter of Credit
Back-Stop Arrangements and Swingline Back-Stop
Arrangements.
“ B Term Loan
Percentage ” shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is the aggregate
principal amount of B Term Loans then outstanding and the
denominator of which is the sum of the aggregate principal amount
of Term Loans then outstanding.
“ Converting Letter of
Credit ” shall have the meaning provided in
Section 2.20(a)(vii).
“ C Term Borrowing
” shall mean a Borrowing comprised of C Term
Loans.
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“ C Term Loan
Commitment ” shall mean with respect to each Lender, the
commitment of such Lender to make C Term Loans hereunder as set
forth in Schedule 2.01.
“ C Term Loan Installment
Date ” shall have the meaning provided in
Section 2.11(a)(ii).
“ C Term Loan Maturity
Date ” shall mean the earlier of (x) April 5,
2014 and (y) if the Senior Notes have not been repaid or
refinanced in full on or before the 91st day prior to the stated
maturity of the Senior Notes, the date which is 91 days prior to
the stated maturity of the Senior Notes.
“ C Term Loan
Percentage ” shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is the aggregate
principal amount of C Term Loans then outstanding and the
denominator of which is the sum of the aggregate principal amount
of Term Loans then outstanding.
“ C Term Loans ”
shall mean the term loans made by the Lenders to the Borrower
pursuant to Sections 2.01(e) or 2.23.
“ Extending Revolving
Credit Borrowing ” shall mean a Borrowing comprised of
Extending Revolving Loans.
“ Extending Revolving
Credit Commitment ” shall mean, with respect to each
Lender, the amount set forth opposite such Lender’s name on
Schedule 2.01 directly below the column entitled “Extending
Revolving Credit Commitment” or in the Assignment and
Acceptance pursuant to which such Lender assumed its Extending
Revolving Credit Commitment, as applicable, as the same may be
reduced from time to time pursuant to Section 2.09 and
pursuant to assignments by such Lender pursuant to
Section 9.04 (it being understood that on the Fourth Amendment
Effective Date, each Lender with a Revolving Credit Commitment
immediately prior to giving effect to the Fourth Amendment shall
have the right, but not an obligation, to provide an Extending
Revolving Commitment of up to 50% of such Lender’s Revolving
Credit Commitment (as in effect immediately prior to giving effect
to the Fourth Amendment); provided that if the Total
Extending Revolving Credit Commitment is less than $125,000,000 on
the Fourth Amendment Effective Date, then on or after the Fourth
Amendment Effective Date one or more Lenders may provide additional
Extending Revolving Credit Commitments in a manner as separately
agreed to by the Borrower, the Administrative Agent and such Lender
or Lenders; provided further , that (x) each Lender
that provides an Extending Revolving Credit Commitment pursuant to
the immediately preceding proviso shall execute and deliver a
joinder to this Agreement in form and substance satisfactory to the
Administrative Agent and (y) the Total Extending Revolving
Credit Commitment shall not exceed $125,000,000 less the aggregate
amount of any permanent reductions of the Total Extending Revolving
Credit Commitment made in accordance with this Agreement prior to
the provision of any additional Extending Revolving Credit
Commitments pursuant to the immediately preceding
proviso).
“ Extending Revolving
Credit Exposure ” shall mean, with respect to any Lender
at any time, the aggregate principal amount at such time of all
outstanding Extending
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Revolving Loans of such Lender
plus the amount at such time of such Lender’s
Revolving L/C Exposure plus the amount at such time of such
Lender’s Swingline Exposure.
“ Extending Revolving
Credit Lender ” shall mean a Lender with an Extending
Revolving Credit Commitment.
“ Extending Revolving
Credit Maturity Date ” shall mean the earlier of
(x) October 1, 2013 and (y) if the Senior Notes have
not been repaid or refinanced in full on or before the 91st day
prior to the stated maturity of the Senior Notes, the date which is
91 days prior to the stated maturity of the Senior
Notes.
“ Extending Revolving
Loans ” shall mean the revolving loans made by the
Lenders to the Borrower pursuant to Section 2.01(b)(ii). Each
Extending Revolving Loan shall be a Eurodollar Revolving Loan or an
ABR Revolving Loan.
“ Fourth Amendment
” shall mean the Fourth Amendment to the Credit Agreement,
dated as of May 28, 2009, among Holdings, the Borrower, the
Co-Borrower, the Loan Parties, certain Lenders and the
Administrative Agent.”
“ Fourth Amendment
Effective Date ” shall have the meaning provided in the
Fourth Amendment.
“ Fourth Amendment Mortgage
Amendments ” shall have the meaning provided in
Section 5.17.
“ Incremental C Term Loan
Commitment Agreement ” shall mean an Incremental C Term
Loan Commitment Agreement substantially in the form of Exhibit
D (appropriately completed), with such revisions reasonably
approved by the Administrative Agent, executed in accordance with
Section 2.23.
“ Incremental C Term Loan
Commitments ” shall mean, for any Lender, any commitment
by such Lender to make C Term Loans as agreed to by such Lender in
the Incremental C Term Loan Commitment Agreement delivered pursuant
to Section 2.23.
“ Incremental C Term Loan
Lender ” shall have the meaning provided in
Section 2.23(b).
“ Letter of Credit
Back-Stop Arrangements ” shall have the meaning provided
in Section 2.20(a)(ii).
“ Maturity Date ”
shall mean the Non-Extending Revolving Credit Maturity Date, the
Extending Revolving Credit Maturity Date, the B Term Loan Maturity
Date or the C Term Loan Maturity Date as the context
requires.
“ Minimum Liquidity
” shall mean, at any time, the sum of (i) unrestricted
cash and cash equivalents (determined in accordance with GAAP) of
the Borrower and its Subsidiaries at such time and (ii) the
Available Extending Revolving Credit Commitments at such
time.
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“ Non-Extending Revolving
Credit Borrowing ” shall mean a Borrowing comprised of
Non-Extending Revolving Loans.
“ Non-Extending Revolving
Credit Commitment ” shall mean, with respect to each
Lender, the amount set forth opposite such Lender’s name on
Schedule 2.01 directly below the column entitled
“Non-Extending Revolving Credit Commitment” or in the
Assignment and Acceptance pursuant to which such Lender assumed its
Non-Extending Revolving Credit Commitment, as applicable, as the
same may be reduced from time to time pursuant to Section 2.09
and pursuant to assignments by such Lender pursuant to
Section 9.04 (it being understood that on the Fourth Amendment
Effective Date, each Lender shall have a Non-Extending Revolving
Credit Commitment (but not less than zero) equal to (i) its
Revolving Credit Commitment as in effect immediately prior to
giving effect to the Fourth Amendment minus (ii) such
Lender’s Extending Revolving Credit Commitment (as in effect
on the Fourth Amendment Effect Date) multiplied by 2).
“ Non-Extending Revolving
Credit Exposure ” shall mean, with respect to any Lender
at any time, the aggregate principal amount at such time of all
outstanding Non-Extending Revolving Loans of such
Lender.
“ Non-Extending Revolving
Credit Lender ” shall mean a Lender with a Non-Extending
Revolving Credit Commitment.
“ Non-Extending Revolving
Credit Maturity Date ” shall mean the sixth anniversary
of the Closing Date.
“ Non-Extending Revolving
Loans ” shall mean the revolving loans made by the
Lenders to the Borrower pursuant to Sections 2.01(b)(i). Each
Non-Extending Revolving Loan shall be a Eurodollar Revolving Loan
or an ABR Revolving Loan.
“ Swingline Back-Stop
Arrangements ” shall have the meaning provided in
Section 2.01(c)(vii).
“ Term Loans ”
shall mean the B Term Loans, the C Term Loans and (without
duplication) term loans of any other sub-Tranche made by the
Lenders to the Borrower pursuant to Section 2.23.
“ Total Extending Revolving
Credit Commitment ” shall mean, at any time, the
aggregate amount of the Extending Revolving Credit Commitments, as
in effect at such time.
“ Total Non-Extending
Revolving Credit Commitment ” shall mean, at any time,
the aggregate amount of the Non-Extending Revolving Credit
Commitments, as in effect at such time.
29. Section 2.01(b) of the
Credit Agreement is hereby amended in its entirety as
follows:
“(b)(i) Subject to the terms
and conditions and relying upon the representations and warranties
of Holdings and the Borrower herein set forth, each Lender
agrees,
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severally and not jointly, to make
Non-Extending Revolving Loans to the Borrower, at any time and from
time to time on or after the Closing Date, and until the
earlier of the Non-Extending Revolving Credit Maturity Date and the
termination of the Non-Revolving Credit Commitment of such Lender
in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in such
Lender’s Non-Extending Revolving Credit Exposure at such time
exceeding the Non-Extending Revolving Credit Commitment of such
Lender at such time, as the same may be reduced from time to time
pursuant to Section 2.09.
(ii) Subject to the terms and
conditions and relying upon the representations and warranties of
Holdings and the Borrower herein set forth (including, without
limitation, Section 2.16(b)), each Lender agrees, severally
and not jointly, to make Extending Revolving Loans to the Borrower,
at any time and from time to time on or after the Fourth
Amendment Effective Date, and until the earlier of the Extending
Revolving Credit Maturity Date and the termination of the Extending
Revolving Credit Commitment of such Lender in accordance with the
terms hereof, in an aggregate principal amount at any time
outstanding that will not result in such Lender’s Extending
Revolving Credit Exposure at such time exceeding the Extending
Revolving Credit Commitment of such Lender at such time, as the
same may be reduced from time to time pursuant to
Section 2.09.”
30. Section 2.01(c) of the
Credit Agreement is hereby amended in its entirety as
follows:
“(c)(i) The Swingline
Lender hereby agrees, subject to the terms and conditions and
relying upon the representations and warranties of Holdings and the
Borrower herein set forth, and subject to the limitations set forth
below with respect to the maximum amount of Swingline Loans
permitted to be outstanding from time to time, to make a portion of
the Extending Revolving Credit Commitments available to the
Borrower from time to time during the period from the Closing Date
through and excluding the earlier of the Extending Revolving Credit
Maturity Date and the termination of the Extending Revolving Credit
Commitments in an aggregate principal amount not to exceed the
Swingline Loan Commitment, by making Swingline Loans to the
Borrower. Swingline Loans may be made notwithstanding the fact that
such Swingline Loans, when aggregated with the Swingline
Lender’s outstanding Extending Revolving Loans, Extending
Revolving L/C Exposure and outstanding Swingline Loans, may exceed
the Swingline Lender’s Extending Revolving Credit Commitment.
The original amount of the Swingline Loan Commitment is
$30,000,000. The Swingline Loan Commitment shall expire on the date
the Extending Revolving Credit Commitments are terminated and all
Swingline Loans and all other amounts owed hereunder with respect
to Swingline Loans shall be paid in full no later than that date.
The Borrower shall give the Swingline Lender telephonic, written or
telecopy notice (in the case of telephonic notice, such notice
shall be promptly confirmed in writing or by telecopy) not later
than 12:00 (noon), New York City time, on the day of a
proposed borrowing. Such notice shall be delivered on a Business
Day, shall be irrevocable and shall refer to this Agreement and
shall specify the requested date (which shall be a Business Day)
and amount of such Swingline Loan.
(ii) In no event shall
(A) the aggregate principal amount of Swingline Loans
outstanding at any time exceed the aggregate Swingline Loan
Commitment in effect at
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such time, (B) the Aggregate
Extending Revolving Credit Exposure at any time exceed the Total
Extending Revolving Credit Commitment at such time or (C) the
aggregate Swingline Loan Commitment exceed at any time the Total
Extending Revolving Credit Commitment in effect at such time.
Swingline Loans may only be made as ABR Loans.
(iii) With respect to any
Swingline Loans that have not been voluntarily prepaid by the
Borrower, the Swingline Lender (by request to the Administrative
Agent) or Administrative Agent at any time may, in its sole
discretion, on one Business Day’s notice, require each
Extending Revolving Credit Lender, including the Swingline Lender,
and each such Lender hereby agrees, subject to the provisions of
this Section 2.01(c), to make an Extending Revolving Loan
(which shall be funded as an ABR Loan) in an amount equal to such
Lender’s Applicable Percentage of the amount of the Swingline
Loans (“ Refunded Swingline Loans ”) outstanding
on the date notice is given which the Swingline Lender requests the
Lenders to prepay.
(iv) In the case of Extending
Revolving Loans made by Lenders other than the Swingline Lender
under the immediately preceding paragraph (iii), each such
Lender shall make the amount of its Extending Revolving Loan
available to the Administrative Agent, in same day funds, at the
office of the Administrative Agent located at 60 Wall Street, New
York, New York, not later than 1:00 p.m., New York City
time, on the Business Day next succeeding the date such notice is
given. The proceeds of such Extending Revolving Loans shall be
immediately delivered to the Swingline Lender (and not to the
Borrower) and applied to repay the Refunded Swingline Loans. On the
day such Extending Revolving Loans are made, the Swingline
Lender’s Applicable Percentage of the Refunded Swingline
Loans shall be deemed to be paid with the proceeds of an Extending
Revolving Loan made by the Lenders and such portion of the
Swingline Loans deemed to be so paid shall no longer be outstanding
as Swingline Loans and shall be outstanding as an Extending
Revolving Loan of the respective Lenders. The Borrower authorizes
the Administrative Agent and the Swingline Lender to charge the
Borrower’s account with the Administrative Agent (up to the
amount available in such account) in order to pay immediately to
the Swingline Lender the amount of such Refunded Swingline Loans to
the extent amounts received from Lenders, including amounts deemed
to be received from the Swingline Lender, are not sufficient to
repay in full such Refunded Swingline Loans. If any portion of any
such amount paid (or deemed to be paid) to the Swingline Lender
should be recovered by or on behalf of the Borrower from the
Swingline Lender in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall
be ratably shared among all Lenders in the manner contemplated by
Section 2.17. Subject to the compliance by the Swingline
Lender with the provisions of subparagraph (vii) below, each
Lender’s obligation to make the Extending Revolving Loans
referred to in this paragraph shall be absolute and unconditional
and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other
right that such Lender may have against the Swingline Lender, the
Borrower or any other person for any reason whatsoever;
(B) the occurrence or continuance of an Event of Default or a
Default; (C) any adverse change in the condition (financial or
otherwise) of Holdings or any of its Subsidiaries; (D) any
breach of this Agreement by Holdings, the Borrower or any other
Lender; or (E) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. Nothing
in this Section 2.01(c) shall be deemed to relieve any Lender
from its
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obligation to fulfill its
Commitments hereunder or to prejudice any rights that the Borrower
may have against any Lender as a result of any default by such
Lender hereunder.
(v) A copy of each notice given
by the Swingline Lender or the Administrative Agent pursuant to
this Section 2.01(c) shall be promptly delivered by the
Swingline Lender to the Administrative Agent and the Borrower. Upon
the making of an Extending Revolving Loan by a Lender pursuant to
this Section 2.01(c), the amount so funded shall no longer be
owed in respect of Swingline Loans.
(vi) To the extent any
Swingline Loans are outstanding on any date when one of the events
described in Section 7.01(h) or (i) shall have occurred,
each Extending Revolving Credit Lender will, on such date, purchase
an undivided participating interest in the Refunded Swingline Loans
(determined as if the notice specified in clause (c)(iii) of this
Section 2.01 had in fact been given with respect to all then
outstanding Swingline Loans) in an amount equal to its Applicable
Percentage of such Refunded Swingline Loans. Upon one Business
Day’s notice from the Swingline Lender, each Extending
Revolving Credit Lender shall deliver to the Swingline Lender an
amount equal to its respective participation in same day funds at
the office of the Swingline Lender in New York, New York.
In order to evidence such participation each Extending Revolving
Credit Lender agrees to enter into a participation agreement at the
request of the Swingline Lender in form and substance reasonably
satisfactory to all parties. In the event any Extending Revolving
Credit Lender fails to make available to the Swingline Lender the
amount of such Extending Revolving Credit Lender’s
participation as provided in this Section 2.01(c), the
Swingline Lender shall be entitled to recover such amount on demand
from such Extending Revolving Credit Lender together with interest
at the customary rate set by the Swingline Lender for correction of
errors among banks in New York City for one Business Day and
thereafter at the Alternate Base Rate plus the ABR Margin
then in effect for Extending Revolving Loans as set forth on
Schedule A.
(vii) Notwithstanding anything
to the contrary contained in this Section 2.01(c),
(A) the Swingline Lender shall not be obligated to make any
Swingline Loans at a time when the Swingline Lender is aware that
the conditions to the making of such Swingline Loan set forth in
Section 4.01 have not been satisfied unless such conditions
shall have been waived in accordance with this Agreement,
(B) the Swingline Lender shall not be obligated to make any
Swingline Loans at a time when a Lender Default exists with respect
to an Extending Revolving Credit Lender unless the Swingline Lender
has entered into arrangements satisfactory to it and the Borrower
to eliminate the Swingline Lender’s risk with respect to each
Defaulting Lender’s participation in such Swingline Loans
(which arrangements are hereby consented to by the Lenders),
including by cash collateralizing such Defaulting Lender’s
Applicable Percentage of the outstanding Swingline Loans (such
arrangements, the “ Swingline Back-Stop Arrangements
”), and (C) the Swingline Lender shall not make any
Swingline Loan after it has received written notice from the
Borrower, any other Loan Party or the Required Lenders stating that
a Default or an Event of Default exists and is continuing until
such time as the Swingline Lender shall have received written
notice (x) of rescission of all such notices from the party or
parties originally delivering such notice or notices or (y) of
the waiver of such Default or Event of Default by the Required
Lenders.”
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31. Section 2.01(d) of the
Credit Agreement is hereby amended in its entirety as
follows:
“(d) Within the limits set
forth in paragraphs (b) and (c) above, the Borrower may
borrow, pay or prepay (including pursuant to a refinancing
permitted by Section 2.02(f)) and reborrow Non-Extending
Revolving Loans on and after the Closing Date and prior to the
Non-Extending Revolving Credit Maturity Date and Extending
Revolving Loans and Swingline Loans on or after the Fourth
Amendment Effective Date and prior to the Extending Revolving
Credit Maturity Date, in each case, subject to the terms,
conditions and limitations set forth herein. Amounts paid or
prepaid in respect of Term Loans may not be
reborrowed.”
32. Section 2.01 of the Credit
Agreement is hereby further amended by inserting the following new
clauses (e) and (f) at the end thereof:
“(e) Subject to the terms and
conditions and relying upon the representations and warranties of
Holdings and the Borrower herein set forth, each Lender agrees,
severally and not jointly to make a C Term Loan to the Borrower in
a principal amount not to exceed the C Term Loan Commitment set
forth opposite its name on Schedule 2.01, which C Term Loans shall
be incurred by the Borrower on the Fourth Amendment Effective Date
and shall be funded by converting the then outstanding B Term Loans
of such Lender (up to the amount of its C Term Loan Commitment)
into C Term Loans. The Borrower shall, on the Fourth Amendment
Effective Date, pay all amounts owing under Section 2.15(c) as
a result of the repayment or conversion of B Term Loans as required
above in this Section 2.01(e) and shall designate in the
relevant Borrowing Request whether each Borrowing of C Term Loans
will be maintained as a Eurodollar Loan or an ABR Loan and, if such
Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto; provided that the Borrower may elect, for
any Borrowing of C Term Loans, to continue one or more Interest
Periods (not to exceed the principal amount of the respective
Borrowing of B Term Loans converted plus any additions to the
respective Borrowing pursuant to following clause (y)) that apply
to the B Term Loans converted as Interest Periods (until the end
thereof) applicable to the C Term Loans incurred on the Fourth
Amendment Effective Date which shall be subject to the same
Adjusted LIBO Rate (as previously calculated prior to the Fourth
Amendment Effective Date), but with any adjustment to the Adjusted
LIBO Rate as required by clause (ii) of the definition of LIBO
Rate being immediately made and with the LIBOR Margin provided
herein.
(f) On the Fourth Amendment
Effective Date , the Borrower shall, in coordination with
the Administrative Agent, repay outstanding Non-Extending Revolving
Loans and/or Extending Revolving Loans of certain of the Lenders
with a Non-Extending Revolving Credit Commitment or Extending
Revolving Credit Commitment, as applicable, and incur additional
Non-Extending Revolving Loans and/or Extending Revolving Loans from
certain other Lenders with a Non-Extending Revolving Credit
Commitment and/or Extending Revolving Credit Commitment, in each
case to the extent necessary so that (i) all of the Lenders
participate in each outstanding Borrowing of Non-Extending
Revolving Loans and Extending Revolving Loans pro rata
within each Tranche on the basis of their respective Non-Extending
Revolving Credit Commitments
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or Extending Revolving Credit
Commitments (after giving effect to any increase in the Total
Extending Revolving Credit Commitment and decrease in the Total
Non-Extending Revolving Credit Commitment pursuant to the Fourth
Amendment) and (ii) no Non-Extending Revolving Loans are
outstanding unless the Aggregate Extending Revolving Credit
Exposure equals the Total Extending Revolving Commitment. On each
other date on which the Total Extending Revolving Credit Commitment
is increased in accordance with the terms of this Agreement, the
Borrower shall, in coordination with the Administrative Agent,
repay outstanding Extending Revolving Loans of certain of the
Lenders with an Extending Revolving Credit Commitment and incur
additional Extending Revolving Loans from certain other Lenders
with an Extending Revolving Credit Commitment, to the extent
necessary so that all of the Lenders participate in each
outstanding Borrowing of Extending Revolving Loans pro rata
on the basis of their respective Extending Revolving Credit
Commitments (after giving effect to any increase in the Total
Extending Revolving Credit Commitment pursuant to this
Agreement).”
33. Section 2.02(a) of the
Credit Agreement is hereby amended by inserting the text
“Extending” immediately prior t
