Exhibit 10.1
THIRD AMENDMENT TO CREDIT
AGREEMENT
THIRD AMENDMENT TO CREDIT AGREEMENT
(this “ Third Amendment ”), dated as of
August 20, 2009, among MICHAELS STORES, INC., a Delaware
corporation (the “ Borrower ”), the Lenders
party to the Credit Agreement referred to below (the “
Lenders ”), and DEUTSCHE BANK AG NEW YORK BRANCH, as
administrative agent (in such capacity, the “
Administrative Agent ”). Unless otherwise
defined herein, capitalized terms used herein and defined in the
Credit Agreement are used herein as therein defined.
W I T N E S
S E T H :
WHEREAS, the Borrower, the Lenders,
the Administrative Agent, the Syndication Agent and the
Co-Documentation Agents have entered into a Credit Agreement, dated
as of October 31, 2006 (as amended, supplemented and/or
otherwise modified to, but not including, the date hereof, the
“ Credit Agreement ”); and
WHEREAS, pursuant to
Section 10.01 of the Credit Agreement, the parties hereto wish
to amend certain provisions of the Credit Agreement as provided
herein, subject to the terms and conditions set forth
below.
NOW, THEREFORE, it is
agreed;
A.
Amendments to
the Credit Agreement
1.
Section 1.01
of the Credit Agreement is hereby amended by (i) deleting the
definitions of “ Commitment ”, “
Lender ”, “
Loan ”, “
Loan Documents ” and “
Secured Hedge Agreement
” appearing
in said Section in their entirety and (ii) inserting in
appropriate alphabetical order the following new
definitions:
“ Additional First
Lien Intercreditor Agreement ” means an
intercreditor agreement among the Administrative Agent, the
Collateral Agent and one or more Senior Representatives for holders
of Permitted First Priority Refinancing Debt providing that,
inter alia , the Liens on the Collateral as between the
Collateral Agent (for the benefit of the Secured Parties) and one
or more Senior Representatives (for the benefit of the holders of
Permitted First Priority Refinancing Debt) shall be pari
passu (but without regard to control of remedies), as such
intercreditor agreement may be amended, modified or supplemented
from time to time in accordance with the terms hereof and
thereof. The Additional First Lien Intercreditor Agreement
shall be in a form customary for transactions of the type
contemplated thereby and otherwise reasonably satisfactory to the
Administrative Agent and the Borrower and, to the extent agreed to
by the Collateral Agent, the Senior Representative for the
applicable holders of Permitted First Priority Refinancing Debt and
the ABL Collateral Agent, may be in the form of an amendment and
restatement of the Intercreditor Agreement.
“ Additional Lender
” means, at any time, any bank or other financial institution
or institutional lender (other than any such bank, financial
institution or institutional lender that is a Lender at such time)
that agrees to provide any portion of Credit Agreement Refinancing
Indebtedness pursuant to a Refinancing Amendment in accordance with
Section 2.15, provided that each Additional Lender
shall be subject to the approval of the Administrative Agent to the
extent that each such Additional Lender is not then an existing
Lender, an Affiliate of a then existing Lender or an Approved Fund
(such approval not to be unreasonably withheld) and the
Borrower.
“ Appropriate Lender
” means, at any time, with respect to Loans of any Class, the
Lenders of such Class.
“ Class ” when
used with respect to Loans or a Borrowing, refers to whether such
Loans, or the Loans comprising such Borrowing, are Replacement
Loans or Other Term Loans.
“ Commitment ”
means, as to each Lender, its Original Commitment, its New
Commitment, its Replacement Commitment or its Other Term Loan
Commitment, as the context may require.
“Credit Agreement
Refinancing Indebtedness ” means (a) Permitted First Priority
Refinancing Debt, (b) Permitted Unsecured Refinancing Debt or
(c) Indebtedness incurred pursuant to a Refinancing Amendment,
in each case, issued, incurred or otherwise obtained
(including by means of the extension or renewal of existing
Indebtedness) in exchange for, or to extend, renew, replace or
refinance, in whole or part, then existing Loans (including
any successive Credit Agreement Refinancing Indebtedness) (“
Refinanced Debt ”); provided that (i) such
extending, renewing or refinancing Indebtedness is in an original
aggregate principal amount (or accreted value, if applicable) not
greater than the aggregate principal amount (or accreted value, if
applicable) of the Refinanced Debt except by an amount equal to
unpaid accrued interest and premium thereon plus other reasonable
amounts paid, and fees and expenses reasonably incurred, in
connection with such extending, renewing or refinancing
Indebtedness, (ii) such Indebtedness has a later
maturity and a Weighted Average Life to Maturity equal to
or greater than the Refinanced Debt, and (iii) unless such
Credit Agreement Refinancing Indebtedness is incurred solely by
means of extending or renewing then existing Indebtedness described
in clause (a) or (b) above without resulting in any Net
Proceeds, such Refinanced Debt shall be repaid, defeased or
satisfied and discharged with 100% of the Net Proceeds from any
Credit Agreement Refinancing Indebtedness, and all accrued
interest, fees and premiums (if any) in connection therewith shall
be paid, on the date such Credit Agreement Refinancing Indebtedness
is issued, incurred or obtained.
“ Latest Maturity Date
” means, at any date of determination, the latest Maturity
Date applicable to any Loan or Commitment hereunder at such time,
including the latest maturity date of any Other Term Loan or any
Other Term Commitment, in each case as extended in accordance with
this Agreement from time to time.
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“ Lender ” has
the meaning specified in the introductory paragraph to this
Agreement and includes (i) each Replacement Lender and its
respective successors and assigns as permitted hereunder and
(ii) each Person that shall become a party hereto pursuant to
a Refinancing Amendment and its respective successors and assigns
as permitted hereunder, each of which is referred to herein as a
“Lender”.
“ Loan ” means
(a) the making of an Original Loan by a Lender to the Borrower
pursuant to Section 2.01(a), (b) the making of an
Additional New Loan by a Lender to the Borrower pursuant to
Section 2.01(c), (c) the conversion of an Original Loan
to a Converted New Loan by a Lender pursuant to
Section 2.01(b), (d) the making of a Replacement Loan by
a Lender to the Borrower pursuant to Section 2.01(d) or
(e) the making of an Other Term Loan by a Lender or an
Additional Lender to the Borrower pursuant to
Section 2.15.
“ Loan Documents
” means, collectively, (a) this Agreement, (b) the
Notes, (c) the Guaranty, (d) the Intercreditor Agreement,
(e) the Collateral Documents and (f) on and after the
execution and delivery thereof, the Additional First Lien
Intercreditor Agreement.
“ Other Term
Commitments ” means one or more term loan commitments
hereunder that fund Other Term Loans of the applicable
Class hereunder pursuant to a Refinancing
Amendment.
“ Other Term Loans
” means one or more Classes of term loans hereunder that
result from a Refinancing Amendment.
“ Permitted First Priority
Refinancing Debt ” means any secured Indebtedness
incurred by the Borrower in the form of one or more series of
senior secured notes or loans; provided that (i) such
Indebtedness is secured by (A) the TL Priority Collateral on a
pari passu first-lien basis (but without regard to the control of
remedies) with the Secured Obligations and (B) the ABL
Priority Collateral on a pari passu second-lien basis (but without
regard to the control of remedies) with the Secured Obligations,
and is not secured by any property or assets of the Borrower or any
Subsidiary other than the Collateral, (ii) such Indebtedness
constitutes Credit Agreement Refinancing Indebtedness in respect of
any Class of Loans (including portions of any Class of
Loans), (iii) such Indebtedness (and the Liens securing the
same) are permitted by the terms of the ABL Credit Agreement and
the Intercreditor Agreement (in each case, to the extent the ABL
Credit Agreement and the Intercreditor Agreement are then in
effect), (iv) such Indebtedness does not mature or have
scheduled amortization or payments of principal prior to the date
that is ninety-one (91) days after the Latest Maturity Date at the
time such Indebtedness is incurred, (v) the security
agreements relating to such Indebtedness are substantially the same
as the Collateral Documents (with such differences as are
reasonably satisfactory to the Administrative Agent),
(vi) such Indebtedness is not guaranteed by any Subsidiaries
other than the Subsidiary Guarantors, and (vii) a Senior
Representative acting on behalf of the holders of such Indebtedness
shall have
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become party to the Additional First
Lien Intercreditor Agreement, provided that if such Indebtedness is
the initial Permitted First Priority Refinancing Debt incurred by
the Borrower, then the Borrower, the Subsidiary Guarantors, the
Administrative Agent, the Collateral Agent and the Senior
Representative for such Indebtedness shall have executed and
delivered the Additional First Lien Intercreditor Agreement.
Permitted First Priority Refinancing Debt will include any
Registered Equivalent Notes issued in exchange therefor.
“ Permitted Refinancing
” means, with respect to any Person, any modification,
replacement, refinancing, refunding, renewal or extension of any
Indebtedness of such Person; provided that (a) the
principal amount (or accreted value, if applicable) thereof does
not exceed the principal amount (or accreted value, if applicable)
of the Indebtedness so modified, replaced, refinanced, refunded,
renewed or extended except by an amount equal to unpaid accrued
interest and premium thereon plus other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such
modification, replacement, refinancing, refunding, renewal or
extension and by an amount equal to any existing commitments
unutilized thereunder, (b) such modification, replacement,
refinancing, refunding, renewal or extension has a final maturity
date equal to or later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being
modified, replaced, refinanced, refunded, renewed or extended,
(c) at the time thereof, no Default or Event of Default shall
have occurred and be continuing, (d) if such Indebtedness
being modified, replaced, refinanced, refunded, renewed or extended
is subordinated in right of payment to the Obligations, such
modification, replacement, refinancing, refunding, renewal or
extension is subordinated in right of payment to the Obligations on
terms at least as favorable to the Lenders as those contained in
the documentation governing the Indebtedness being modified,
replaced, refinanced, refunded, renewed or extended, (e) the
terms and conditions (including, if applicable, as to collateral
but excluding as to subordination, interest rate and redemption
premium) of any such modified, replaced, refinanced, refunded,
renewed or extended Indebtedness, taken as a whole, are not
materially less favorable to the Loan Parties or the Lenders than
the terms and conditions of the Indebtedness being modified,
replaced, refinanced, refunded, renewed or extended;
provided that a certificate of a Responsible Officer
delivered to the Administrative Agent at least five Business Days
prior to the incurrence of such Indebtedness, together with a
reasonably detailed description of the material terms and
conditions of such Indebtedness or drafts of the documentation
relating thereto, stating that the Borrower has determined in good
faith that such terms and conditions satisfy the foregoing
requirement shall be conclusive evidence that such terms and
conditions satisfy the foregoing requirement unless the
Administrative Agent notifies the Borrower within such five
Business Day period that it disagrees with such determination
(including a reasonable description of the basis upon which it
disagrees), (f) any such modification, replacement,
refinancing, refunding, renewal or extension is incurred by the
Person who is the obligor of the Indebtedness being modified,
refinanced, refunded, renewed or extended, (g) in the case of
a “Permitted Refinancing” of Permitted First Priority
Refinancing
4
Debt, such Indebtedness meets the
requirements of clauses (i), (iii), (v), (vi) and
(vii) of the definition of “Permitted First Priority
Refinancing Debt” and (h) in the case of a
“Permitted Refinancing” of Permitted Unsecured
Refinancing Debt, such Indebtedness meets the requirements of
clauses (iv) and (v) of the definition of
“Permitted Unsecured Refinancing Debt”.
“ Permitted Unsecured
Refinancing Debt ” means unsecured Indebtedness incurred
by the Borrower in the form of one or more series of senior
unsecured notes or loans; provided that (i) such Indebtedness
constitutes Credit Agreement Refinancing Indebtedness in respect of
any Class of Loans (including portions of any Class of
Loans), (iii) such Indebtedness does not mature or have
scheduled amortization or payments of principal prior to the date
that is ninety-one (91) days after the Latest Maturity Date at the
time such Indebtedness is incurred, (iv) such Indebtedness is
not guaranteed by any Subsidiaries other than the Subsidiary
Guarantors, and (v) such Indebtedness is not secured by any
Lien on any property or assets of the Company or any
Subsidiary. Permitted Unsecured Refinancing Debt will include
any Registered Equivalent Notes issued in exchange
therefor.
“ Refinancing Amendment
” means an amendment to this Agreement in form and substance
reasonably satisfactory to the Administrative Agent and the
Borrower executed by each of (a) the Borrower, (b) the
Administrative Agent and (c) each Additional Lender and Lender
that agrees to provide any portion of the Credit Agreement
Refinancing Indebtedness being incurred pursuant thereto, in
accordance with Section 2.15.
“ Registered Equivalent
Notes ” means, with respect to any notes originally
issued in a Rule 144A or other private placement transaction
under the Securities Act of 1933, substantially identical notes
(having the same guarantees) issued in a dollar for dollar exchange
therefor pursuant to an exchange offer registered with the
SEC.
“ Replacement Lender
” means each Lender with a Replacement Commitment and/or
Replacement Loans.
“ Secured Hedge
Agreement ” means any Swap Contract permitted under
Article 7 that is entered into by and between any Loan Party
or any Restricted Subsidiary and any Hedge Bank and with respect to
which, at or prior to the time that such Swap Contract is entered
into, the Borrower (or another Loan Party) and the Hedge Bank party
thereto (except in the case of the Administrative Agent) shall have
delivered written notice to the Administrative Agent that such Swap
Contract has been entered into and that it constitutes a
“Secured Hedge Agreement” entitled to the benefits of
the Collateral Documents, the Intercreditor Agreement and (if then
in effect) the Additional First Lien Intercreditor
Agreement.
“ Senior Representative
” means, with respect to any series of Permitted First
Priority Refinancing Debt, the trustee, administrative agent,
collateral agent,
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security agent or similar agent
under the indenture or agreement pursuant to which such
Indebtedness is issued, incurred or otherwise obtained, as the case
may be, and each of their successors in such capacities.
“ Third
Amendment” means the Third Amendment to this Agreement,
dated as of August 20, 2009.
“ Third Amendment Effective
Date” has the meaning provided in the Third
Amendment.
2.
The definition of
“ Collateral and
Guarantee Requirement ” appearing in
Section 1.01
