AMENDMENT NO. 3
Exhibit 10.34(e)
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of October 25, 2019 (this “Amendment”), among WRKCO INC. (formerly known as WESTROCK COMPANY), a Delaware corporation (the “Company”), the other Credit Parties, the Lenders party hereto and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, the “Agent”), to the Credit Agreement dated as of October 31, 2017 (as amended by Amendment No. 1, dated as of March 7, 2018, and Amendment No. 2, dated as of October 29, 2018, and as further amended, restated, amended and restated or otherwise modified from time to time, the “Credit Agreement”), by and among the Company, the other Credit Parties from time to time party thereto, the Agent and the Lenders referred to therein. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
WHEREAS, pursuant to Section 9.1(i) of the Credit Agreement, the Credit Parties, the Lenders and the Agent desire to amend the Credit Agreement to extend each of the Lenders’ Commitments thereunder on the terms set forth herein and to effect certain other amendments.
NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1.Amendment. Effective as of the Amendment No. 3 Effective Date (as defined below), the Credit Agreement is hereby amended as follows:
(a)Section 1.1 of the Credit Agreement is amended by restating the definition of “Revolving Maturity Date” therein as follows:
“Revolving Maturity Date” means the earlier of (x) October 23, 2020 and (y) the date on which the 2015 Credit Agreement is amended to increase the aggregate amount of Revolving Commitments (as defined in the 2015 Credit Agreement) to an amount not less than $2,300,000,000.
(b)Section 1.3 of the Credit Agreement is amended by adding the following new paragraph (v) at the end thereof:
(v)Notwithstanding anything to the contrary contained herein, only those leases (assuming for purposes hereof that they were in existence on December 31, 2017) that would have constituted Capital Leases as of December 31, 2017, shall be considered Capital Leases hereunder and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith.
(c)Article I of the Credit Agreement is hereby amended by adding the following new section immediately after Section 1.5:
“Section 1.6 Divisions. For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a
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different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.”
(d)Section 2.13 of the Credit Agreement is hereby amended by (x) changing the heading of such Section to “Fees,” (y) adding “(a)” immediately before “In consideration of the Commitments,” and (z) adding the following new paragraph and the end of such Section:
“(b)In consideration of the Commitments, if any Commitments are in effect or any Loans are outstanding on January 1, 2020 (the “Duration Fee Date”), the Parent Borrower agrees to pay to the Administrative Agent for the ratable benefit of the Lenders a fee (the “Duration Fee”) in an amount equal to 0.025% of the sum of (x) the aggregate principal amount of Loans outstanding and (y) the aggregate amount of unused Commitments in effect, in each case on the Duration Fee Date. The Duration Fee, if any, shall be earned on the Duration Fee Date and shall be due and payable on January 2, 2020.”
(e)Article IX of the Credit Agreement is hereby amended by adding the following new section immediately after Section 9.19:
“Section 9.20 Acknowledgment Regarding Any Supported QFCs.
To the extent that the Credit Documents provide support, through a guarantee or otherwise, of Hedging Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Credit Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
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exercised under the U.S. Special Resolution Regime if the Supported QFC and the Credit Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. |
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(b) |
As used in this Section 9.20, the following terms shall have the following meanings: |
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
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“Covered Entity” means any of the following: |
(i)a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
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“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).” |
Section 2.Representations and Warranties. The Credit Parties represent and warrant to the Lenders and the Agent as of the Amendment No. 3 Effective Date that:
(a)At the time of and immediately after giving effect to this Amendment, the representations and warranties set forth in the Credit Documents are true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) with the same effect as if made on the Amendment No. 3 Effective Date, except to the extent such representations and warranties expressly relate to an earlier date.
(b)At the time of and immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
(c)As of the Amendment No. 3 Effective Date, the information included in the Beneficial Ownership Certification (as defined below) provided on or prior to the Amendment No. 3 Effective Date to any Lender in connection with this Amendment is true and correct in all respects.
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Section 3.Conditions to Effectiveness. This Amendment shall become effective on the date (the “Amendment No. 3 Effective Date”) on which:
(a)the Agent (or its counsel) shall have received from the Credit Parties and each Lender, a counterpart of this Amendment signed on behalf of each such party;
(b)the Agent (or its counsel) shall have received the following (or their equivalent), each (other than with respect to clause (iv)) certified by the secretary or assistant secretary of the Company as of the Amendment No. 3 Effective Date to be true and correct and in force and effect pursuant to a certificate in a form reasonably satisfactory to the Agent: (i) copies of the articles of incorporation or charter documents of the Company, certified by the secretary or assistant secretary of the Company as of the Amendment No. 3 Effective Date to be true and correct and in force and effect pursuant to a certificate in a form reasonably satisfactory to the Agent, and that the articles or charter documents are in full force and effect; (ii) copies of resolutions of the board of directors of the Company approving and adopting this Amendment (including the transactions contemplated herein) and authorizing execution and delivery hereof; (iii) copies of the bylaws, operating agreement or partnership agreement of the Company, and that such by-laws, operating agreements or partnership agreements are in full force and effect; and (iv) copies, where applicable, of a certificate of good standing of the Company in its state of organization, certified as of a recent date by the appropriate Governmental Authorities of the applicable state of organization;
(c)the representations and warranties set forth in Section 2 hereof shall be true and correct and the Agent shall have received a certificate of a Responsible Officer to such effect;
(d)the Agent shall have received a legal opinion of Cravath, Swaine & Xxxxx LLP, special New York counsel to the Company, in form and substance reasonably acceptable to the Agent;
(e)the Agent shall have received a certificate, in form and substance reasonably satisfactory to it, of a Responsible Officer certifying that immediately after giving effect to this Amendment, the Credit Parties taken as a whole are solvent as of the Amendment No. 3 Effective Date;
(f)the Company shall have paid (i) all fees required to be paid on the Amendment No. 3 Effective Date pursuant to the Engagement Letter, dated as of October 9, 2019 (the “Engagement Letter”), among the Company, Xxxxx Fargo Securities, LLC and Xxxxx Fargo Bank, National Association and (ii) all fees and expenses due and payable pursuant to Section 4 hereof; and
(g)to the extent requested by the Agent or any Lender not less than five (5) days prior to the Amendment No. 3 Effective Date, the Lenders shall have received a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to the Company (a “Beneficial Ownership Certification”).
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Section 4.Fees and Expenses. The Company agrees to reimburse the Agent for the reasonable and documented out-of-pocket expenses incurred by it in connection with this Amendment, including the reasonable and documented fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx llp, counsel for the Agent.
Section 5.Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or by email in Adobe “.pdf” format shall be effective as delivery of a manually executed counterpart hereof.
Section 6.Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7.Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
Section 8.Effect of Amendment. On and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Credit Agreement”, “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Credit Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended or waived by this Amendment. The Credit Agreement, the Notes and each of the other Credit Documents, as specifically amended or waived by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. The parties hereto expressly acknowledge that it is not their intention that this Amendment or any of the other Credit Documents executed or delivered pursuant hereto constitute a novation of any of the obligations, covenants or agreements contained in the Credit Agreement or any other Credit Document, but rather constitute a modification thereof pursuant to the terms contained herein. This Amendment constitutes a Credit Document.
Section 9.Acknowledgement and Consent. (a) Each Guarantor hereby acknowledges that it has reviewed the terms and provisions of the Credit Agreement and this Amendment and consents to the amendments of the Credit Agreement effected pursuant to this Amendment. Each Guarantor hereby confirms that each Credit Document to which it is a party or otherwise bound will continue to guarantee to the fullest extent possible in accordance with the Credit Documents the payment and performance of all “Credit Party Obligations” under each of the Credit Documents to which is a party (in each case as such terms are defined in the applicable Credit Document).
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(b)Each Guarantor acknowledges and agrees that any of the Credit Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment.
(c)Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, such Guarantor is not required by the terms of the Credit Agreement or any other Credit Document to consent to the amendments to the Credit Agreement effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other Credit Document shall be deemed to require the consent of such Guarantor to any future amendments to the Credit Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
BORROWER:WRKCO INC.
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By: |
_/s/ Xxxx Stakel__________________________ |
GUARANTORS:WESTROCK RKT, LLC
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By: |
_/s/ Xxxx Stakel__________________________ |
WESTROCK MWV, LLC
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By: |
_/s/ Xxxx Stakel__________________________ |
WESTROCK COMPANY
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By: |
_/s/ Xxxx Stakel__________________________ |
[Signature Page to WestRock Amendment No. 3]
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By: |
__/s/ Xxx Reedy___________________________ |
[Signature Page to WestRock Amendment No. 3]
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By: |
___/s/ Xxxxx DeMagistris___________________ |
[Signature Page to WestRock Amendment No. 3]
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By: |
_/s/ Xxxxx Powers________________________ |
[Signature Page to WestRock Amendment No. 3]
