AMENDMENT NO. 1 TO CREDIT AGREEMENT
EXHIBIT
10.4
AMENDMENT
NO. 1
TO
THIS
AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “Amendment”)
dated
as of May 1, 2007, is entered into among GSC INVESTMENT FUNDING LLC, as the
Borrower, DEUTSCHE BANK AG, NEW YORK BRANCH (“Deutsche
Bank”),
as
Committed Lender (the “Committed
Lender”),
Deutsche Bank as Managing Agent (in such capacity, the “Managing
Agent”)
and
Deutsche Bank as Administrative Agent (in such capacity, the “Administrative
Agent”).
Capitalized terms used herein without definition shall have the meanings
ascribed thereto in the “Credit Agreement” referred to below.
PRELIMINARY
STATEMENTS
A. Reference
is made to that certain Credit Agreement dated as of April 11, 2007 among the
Borrower, GSCP
(NJ),
L.P., as the Servicer, GSC Investment Corp., as the Performance Guarantor,
the
CP
Lenders, the Committed Lenders, the Managing Agents and the Administrative
Agent
(as amended, modified or supplemented from time to time, the “Credit
Agreement”).
B. The
parties hereto have agreed to amend certain provisions of the Credit Agreement
upon the terms and conditions set forth herein.
SECTION
1.
Amendment.
Subject
to the satisfaction of the conditions set forth in Section
3
hereof,
the parties hereto hereby agree:
(i) to
amend
Section
8.1
to delete
clauses
(f)
and
(i)
in their
entirety and substitute the following therefor:
(f) (i)
a
final non-appealable judgment for the payment of money shall have been rendered
in an amount in excess of (A) $5,000,000 against the Originator or any of its
material subsidiaries (which, for avoidance of doubt, shall include any special
purpose entity subsidiary created to facilitate a structured finance
transaction) or (B) $100,000 against the Borrower by a court of competent
jurisdiction and, if such judgment relates to the Originator or any of its
material subsidiaries, such judgment, decree or order shall continue unsatisfied
and in effect for any period of thirty (30) consecutive days without a stay
of
execution, or (ii) the Originator, the Originator’s material subsidiaries or the
Borrower, as the case may be, shall have made payments of amounts in excess
of
$5,000,000 or $50,000, respectively, in settlement of any litigation;
or
(i) the
Borrower, the Originator or any of the Originator’s material subsidiaries
(which, for avoidance of doubt, shall include any special purpose entity
subsidiary
created
to
facilitate a structured finance transaction) defaults under any material
agreement for borrowed money to which either is a party and which, in the case
of the Originator and its material subsidiaries only, shall evidence
Indebtedness in excess of $5,000,000, and such default is not cured within
the
relevant cure period (other than, in the case of the Originator and its material
subsidiaries, a default occurring under Section 8.1(m) or (n) of that certain
Credit Agreement dated as of May 1, 2007 by and among, inter
alia,
GSC
Investment Funding II, the commercial paper conduits and financial institutions
from time to time party thereto as lenders, and Deutsche Bank AG, New York
Branch as Administrative Agent), or any such recourse debt or other obligation
shall be declared to be due and payable or required to be prepaid (other than
by
scheduled payment) prior to its maturity; or
SECTION
2.
Representations
and Warranties.
The
Borrower hereby represents and warrants to each of the other parties hereto,
that:
(a) this
Amendment constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms; and
(b) on
the
date hereof, before and after giving effect to this Amendment, other than as
amended or waived pursuant to this Amendment, no Default or Event of Default
has
occurred and is continuing.
SECTION
3.
Conditions.
This
Amendment shall become effective on the first Business Day (the “Effective
Date”)
on
which the Administrative Agent or its counsel has received counterpart signature
pages of this Amendment, executed by each of the parties hereto.
SECTION
4.
Reference
to and Effect on the Transaction Documents.
(a) Upon
the
effectiveness of this Amendment, (i) each reference in the Credit Agreement
to
“this Credit Agreement”, “this Agreement”, “hereunder”, “hereof”, “herein” or
words of like import shall mean and be a reference to the Credit Agreement
as
amended or otherwise modified hereby, and (ii) each reference to the Credit
Agreement in any other Transaction Document or any other document, instrument
or
agreement executed and/or delivered in connection therewith, shall mean and
be a
reference to the Credit Agreement as amended or otherwise modified
hereby.
(b) Except
as
specifically amended, terminated or otherwise modified above, the terms and
conditions of the Credit Agreement, of all other Transaction Documents and
any
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect and are hereby
ratified and confirmed.
2
(c) The
execution, delivery and effectiveness of this Amendment shall not operate as
a
waiver of any right, power or remedy of the Administrative Agent, any Managing
Agent or any Lender under the Credit Agreement or any other Transaction Document
or any other document, instrument or agreement executed in connection therewith,
nor constitute a waiver of any provision contained therein, in each case except
as specifically set forth herein.
SECTION
5.
Execution
in Counterparts.
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument. Delivery of an executed counterpart
of a signature page to this Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment.
SECTION
6.
Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York.
SECTION
7.
Headings.
Section
headings in this Amendment are included herein for convenience of reference
only
and shall not constitute a part of this Amendment for any other
purpose.
SECTION
8.
Fees
and Expenses.
Borrower
hereby confirms its agreement to pay on demand all reasonable costs and expenses
of the Administrative Agent, Managing Agents or Lenders in connection with
the
preparation, execution and delivery of this Amendment and any of the other
instruments, documents and agreements to be executed and/or delivered in
connection herewith, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel to the Administrative Agent, Managing Agents
or Lenders with respect thereto.
[Remainder
of Page Deliberately Left Blank]
3
IN
WITNESS
WHEREOF, the parties hereto have caused this Amendment to be duly executed
by
their respective officers as of the date first above written.
| GSC INVESTMENT FUNDING LLC | |||
| By: | /s/ Xxxxxx X. Xxxxxxxx | ||
|
|
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| Name: | Xxxxxx X. Xxxxxxxx | ||
| Title: | President | ||
Signature
Page to Amendment Xx. 0
|
XXXXXXXX
XXXX XX, XXX XXXX
BRANCH, as a Committed Lender, Managing Agent and Administrative Agent |
|||
| By: | /s/ Xxxxxx Xxxxxxxx | ||
|
|
|||
| Name: | Xxxxxx Xxxxxxxx | ||
| Title: | Director | ||
| By: | /s/ Xxxxx Xxxxxx | ||
|
|
|||
| Name: | Xxxxx Xxxxxx | ||
| Title: | Vice President | ||
Signature
Page to Amendment No. 1
The
undersigned acknowledges its receipt of a copy of Amendment No. 1 to Credit
Agreement as of the date hereof. The undersigned (i) reaffirms all of its
obligations under Section 12.14 of the Credit Agreement and (ii) acknowledges
and agrees that the performance undertaking thereunder remains in full force
and
effect (including, without limitation, after giving effect to the amendment
of
the Credit Agreement as of the date hereof).
| GSC INVESTMENT CORP. | |||
| By: | /s/ Xxxxxx X. Xxxxxxxx | ||
|
|
|||
| Name: | Xxxxxx X. Xxxxxxxx | ||
| Title: | Chief Executive Officer | ||
Signature
Page to Amendment No. 1
