EXHIBIT 10.27
FIRST AMENDMENT
TO REVOLVING CREDIT AND GUARANTY AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING
CREDIT AND GUARANTY AGREEMENT (this “Amendment” ) is dated
as of September 23, 2005 and is entered into by and among
NEWPAGE CORPORATION , a Delaware corporation (the
“Borrower” ), NEWPAGE HOLDING
CORPORATION , a Delaware corporation (
“Holdings” ), CERTAIN FINANCIAL
INSTITUTIONS listed on the signature pages hereto (the
“Lenders” ), GOLDMAN SACHS CREDIT PARTNERS
L.P. (“ GSCP ”), as Joint Lead Arranger,
Joint Bookrunner and Co-Syndication Agent, UBS SECURITIES
LLC , as Joint Lead Arranger, Joint Bookrunner and
Co-Syndication Agent, WACHOVIA CAPITAL MARKETS , LLC
, as Co-Syndication Agent, BANK OF AMERICA, N.A. , as
Documentation Agent, JPMORGAN CHASE BANK , N.A., as
Collateral Agent ( “Collateral Agent” ), and
GSCP , as Administrative Agent ( “Administrative
Agent” ) and, for purposes of Section IV hereof, the
CREDIT SUPPORT PARTIES listed on the signature papers
hereto, and is made with reference to that certain REVOLVING
CREDIT AND GUARANTY AGREEMENT dated as of May 2, 2005 (as
amended through the date hereof, the “Credit
Agreement” ) by and among Borrower, Holdings, the
subsidiaries of Borrower named therein, Lenders, Co-Syndication
Agents, Documentation Agent, Collateral Agent and Administrative
Agent. 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 amendment 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
1.1
Amendments
.
A.
Section 1.1 of the Credit
Agreement is hereby amended by amending and restating the
definition of “Issuing Bank” in its entirety as
follows:
“Issuing Bank” means
(i) JP Morgan Chase Bank, N.A., with respect to any Letter of
Credit issued hereunder by JP Morgan Chase Bank, N.A. and
(ii) Wachovia Bank, National Association, with respect to any
Letter of Credit issued hereunder by Wachovia Bank, National
Association, in each case together with its respective successors
and assigns in such capacity. References to the “Issuing
Bank” under this Agreement or any other Credit Document shall
mean either or both of JP Morgan Chase Bank, N.A. and Wachovia
Bank, National Association, as applicable.
B.
Section 1.1 of the Credit
Agreement is hereby further amended by amending and restating the
definition of “Swing Line Lender” in its entirety as
follows:
“Swing Line Lender”
means Wachovia Bank, National Association, in its capacity as Swing
Line Lender hereunder, together with its permitted successors and
assigns in such capacity.
C.
Section 1.1 of the Credit
Agreement is hereby further amended by amending and restating the
definition of “Swing Line Sublimit” in its entirety as
follows:
“Swing Line Sublimit”
means the lesser of (i) $25,000,000, and (ii) the
aggregate unused amount of Revolving Commitments then in
effect.
D.
Section 2.3(b)(ii) of the
Credit Agreement is hereby amended by amending and restating the
first sentence in its entirety and adding a new second sentence
thereafter as follows:
(ii)
Whenever NewPageCo desires that
Swing Line Lender make a Swing Line Loan, NewPageCo shall deliver
to Swing Line Lender and Administrative Agent a Funding Notice no
later than 12:00 p.m. (New York City time) on the proposed
Credit Date. Unless Swing Line Lender has received notice from the
Administrative Agent to the contrary, Swing Line Lender shall be
entitled to rely on any certification from NewPageCo contained in
any Funding Notice to the effect that the conditions precedent to
the issuance of any requested Swing Line Loan have been satisfied
in full, including, without limitation, that after giving effect to
the making of such Swing Line Loan, the Total Utilization of
Revolving Commitments would not exceed the lesser of (1) the
Revolving Commitments then in effect and (2) the Borrowing
Base then in effect.
E.
Section 2.3(b)(iii) of the
Credit Agreement is hereby amended by amending and restating the
first sentence in its entirety as follows:
Unless Swing Line Lender has
received notice from Administrative Agent that the conditions
precedent to the making of any requested Swing Line Loan have not
been satisfied in full, then Swing Line Lender shall make the
amount of its Swing Line Loan available to Administrative Agent by
no later than 2:00 p.m. (New York City time) on the applicable
Credit Date by wire transfer of same day funds in Dollars, at
Administrative Agent’s Principal Office.
F.
Section 2.3(b) of the
Credit Agreement is hereby amended by adding a new paragraph
(vii) immediately after paragraph (vi) as
follows:
(vii)
Upon the request by Swing Line
Lender to have a Revolving Loan made for the purpose of repaying
any Refunded Swing Line Loan pursuant to the immediately preceding
paragraph (iv) or the request by Swing Line Lender to have
Lender purchase a participation in any unpaid Swing Line Loans
pursuant to the immediately preceding paragraph (v), unless Swing
Line Lender has received notice from the Administrative Agent that
the conditions precedent under Section 3.2 were not satisfied
in full at the time
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that the Swing Line Loan was made to
NewPageCo to which such Refunded Swing Line Loan relates or to
which such participation in any unpaid Swing Line Loans relates,
Swing Line Lender shall be deemed to have satisfied the condition
of possessing a good faith belief that all conditions precedent
under Section 3.2 have been satisfied for purposes of the
immediately preceding paragraph (vi).
G.
Section 2.4(a) of the
Credit Agreement is hereby amended to add the following sentence at
the end thereof:
NewPageCo shall have the right to
select the Issuing Bank for each Letter of Credit it
requests.
H.
Section 2.4(b) of the
Credit Agreement is hereby amended to add the following sentence at
the end thereof:
Unless the Issuing Bank has received
notice from the Administrative Agent to the contrary, the Issuing
Bank shall be entitled to rely on any certification from NewPageCo
contained in any Issuance Notice to the effect that the conditions
precedent to the issuance of any requested Letter of Credit have
been satisfied in full, including, without limitation, that after
giving effect to such issuance, the Total Utilization of Revolving
Commitments would not exceed the lesser of (1) the Revolving
Commitments then in effect and (2) the Borrowing Base then in
effect.
I.
Section 2.7(b) of the
Credit Agreement is hereby amended by amending and restating the
second sentence contained therein in its entirety as
follows:
The Register, as in effect at the
close of business on the preceding Business Day, shall be available
for inspection by NewPageCo, any Lender or any Issuing Bank at any
reasonable time and from time to time upon reasonable prior
notice.
J.
Section 3.2(a)(i)of the Credit
Agreement is hereby deleted and replaced with a new paragraph
(i) as follows:
(i)
Administrative Agent shall have
received a fully executed and delivered Funding Notice or Issuance
Notice, as the case may be, and (A) in the case of any
Swing Line Loan, Swing Line Lender shall also have received such
fully executed and delivered Funding Notice with respect to such
Swing Line Loan and (B) in the case of any Letter of Credit,
the applicable Issuing Bank shall also have received such fully
executed and delivered Issuance Notice with respect to the issuance
of such Letter of Credit;
K.
Section 9 of the Credit
Agreement is hereby amended by adding a new Section 9.3 to
read as follows:
9.3.
Appointment of Collateral Agent
as “ Fondé de Pouvoir ”
. Without prejudice to the
foregoing, each Secured Party hereby irrevocably appoints and
authorizes JPMorgan Chase Bank, N.A. (and any successor acting as
Collateral Agent) to act as the person holding the power of
attorney (fondé de pouvoir) (in such capacity “
Attorney ”) of the Secured Parties as contemplated
under Article 2692 of the Civil Code of Quebec, and
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to enter into, to take and to hold
on their behalf, and for their benefit, any hypothec, and to
exercise such powers and duties which are conferred upon the
Attorney under any hypothec. Moreover, without prejudice to such
appointment and authorization to act as the person holding the
power of attorney as aforesaid, each Secured Party hereby
irrevocably appoints and authorizes JPMorgan Chase Bank, N.A. (and
any successor acting as Collateral Agent) (in such capacity, the
“ Custodian ”) to act as agent and custodian for
and on behalf of the Secured Parties to hold and to be the sole
registered holder of any bond which may be issued under any
hypothec, the whole notwithstanding Section 32 of the Act
respecting the special powers of legal persons (Quebec) or any
other applicable law. In this respect: (i) the Custodian shall
keep a record indicating the names and addresses of, and the pro
rata portion of the obligations and indebtedness secured by any
pledge of any such bond and owing to each Secured Party, and
(ii) each Secured Party will be entitled to the benefits of
any charged property covered by any hypothec and will participate
in the proceeds of realization of any such charged property, the
whole in accordance with the terms hereof. Each of the Attorney and
the Custodian shall: (a) have the sole and exclusive right and
authority to exercise, except as may be otherwise specifically
restricted by the terms hereof, all rights and remedies given to
the Attorney and the Custodian (as applicable) pursuant to any
hypothec, bond, pledge, applicable laws or otherwise,
(b) benefit from and be subject to all provisions hereof with
respect to the Collateral Agent mutatis mutandis, including,
without limitation, all such provisions with respect to the
liability or responsibility to and indemnification by the Secured
Parties, and (c) be entitled to delegate from time to time any
of its powers or duties under any hypothec, bond, or pledge on such
terms and conditions as it may determine from time to time.
Any person who becomes a Secured Party shall be deemed to have
consented to and confirmed: (i) the Attorney as the person
holding the power of attorney as aforesaid and to have ratified, as
of the date it becomes a Secured Party, all actions taken by the
Attorney in such capacity, and (ii) the Custodian as the agent
and custodian as aforesaid and to have ratified, as of the date it
becomes a Secured Party, all actions taken by the Custodian in such
capacity.
L.
Section 10.3(a) of the
Credit Agreement is hereby amended by amending and restating the
last sentence contained therein in its entirety as
follows:
