AMENDMENT NO. 3
Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 3
AMENDMENT NO. 3 (this “Amendment”) dated as of August 2, 2010 to the Credit Agreement
referred to below, between Teleflex Incorporated (the “Borrower”), each of the Guarantors
identified under the caption “GUARANTORS” on the signature pages hereto, each of the Lenders
identified under the caption “LENDER” on the Amendment No. 3 Lender Addendum and JPMorgan Chase
Bank, N.A. (“JPMCB”), as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”).
WHEREAS, the Borrower, the Lenders party thereto (individually, a “Lender” and,
collectively, the “Lenders”), the Guarantors party thereto, JPMCB, as collateral agent for
the Lenders (in such capacity, the “Collateral Agent”), the Administrative Agent and Bank
of America, N.A., as syndication agent, are parties to a Credit Agreement dated as of October 1,
2007 (as amended and in effect immediately prior to giving effect to this Amendment, the
“Credit Agreement”); and
WHEREAS, the Borrower, the Guarantors and the Lenders wish to amend the Credit Agreement in
certain respects;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions. Capitalized terms used in this Amendment and not otherwise
defined are used herein as defined in the Credit Agreement.
Section 2. Amendments. Subject to the satisfaction of the conditions precedent in,
and effective as provided in, Section 4 hereof, the Credit Agreement shall be amended as follows:
2.01. General References. References in the Credit Agreement (including references
to the Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as
“hereunder”, “hereby”, “herein” and “hereof”) shall be deemed to be references to the Credit
Agreement as amended hereby.
2.02. Defined Terms.
A. Section 1.01 of the Credit Agreement shall be amended by amending the following
definitions (to the extent already included in said Section 1.01) and inserting the following
definitions in the appropriate alphabetical location (to the extent not already included in said
Section 1.01):
“Alternate Base Rate” means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate
for such day plus 0.50% and (c) the LIBO Rate for the offering of Dollar deposits
for a one month Interest Period commencing on such day plus 1.00%. For purposes of
clause (c) of the immediately preceding sentence, such LIBO Rate shall be determined by the
Administrative Agent based upon rates appearing on Reuters Screen LIBOR01 Page and otherwise
in accordance with the definition of “LIBO Rate”, except that (i) 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 (ii) if a given day is not a Business
Day, such LIBO Rate for such day shall be the rate determined by the Administrative Agent
pursuant to the preceding clause (i) 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 LIBO Rate shall be effective from and
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including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate, the Prime Rate or such LIBO Rate, as the case may be.
“Amendment No. 3” means that certain Amendment No. 3 dated as of August 2, 2010
to this Agreement, between the Borrower, the Guarantors party thereto, the Lenders party
thereto and the Administrative Agent.
“Amendment No. 3 Effective Date” means the date on which the conditions
specified in Section 4.02 of Amendment No. 3 are satisfied (or waived by the Required
Lenders).
“Amendment No. 3 Lender Addendum” means, with respect to any Lender, the
Amendment No. 3 Lender Addendum substantially in the form of Exhibit A to Amendment No. 3
(with such changes thereto, or in such other form, as shall be satisfactory to the
Administrative Agent).
“Applicable Rate” means, for each day:
(a) with respect to the Tranche 1 Revolving Credit Loans or the Tranche 1 Revolving
Credit Commitments, the applicable rate per annum set forth under the heading “ABR Spread”,
“Eurocurrency Spread” or “Commitment Fee Rate”, respectively, in the Tranche 1 Pricing Grid
based upon the Leverage Ratio as of the most recent determination date (or otherwise
determined in accordance with this definition);
(b) with respect to the Tranche 2 Revolving Credit Loans or the Tranche 2 Revolving
Credit Commitments, the applicable rate per annum set forth under the heading “ABR Spread”,
“Eurocurrency Spread” or “Commitment Fee Rate”, respectively, in the Tranche 2 Pricing Grid
based upon the Leverage Ratio as of the most recent determination date (or otherwise
determined in accordance with this definition);
(c) with respect to the Tranche 1 Term Loans, the applicable rate per annum set forth
under the heading “ABR Spread” or “Eurocurrency Spread” in the Tranche 1 Pricing Grid based
upon the Leverage Ratio as of the most recent determination date (or otherwise determined in
accordance with this definition); and
(d) with respect to the Tranche 2 Term Loans, the applicable rate per annum set forth
under the heading “ABR Spread” or “Eurocurrency Spread” in the Tranche 2 Pricing Grid based
upon the Leverage Ratio as of the most recent determination date (or otherwise determined in
accordance with this definition);
provided that, for purposes of clauses (b) and (d) above only, for the period from
and including the Amendment No. 3 Effective Date to but excluding the effective date of the
next change in the Leverage Ratio pursuant to the immediately succeeding sentence, the
Applicable Rate shall be deemed to fall within Category 3 of the Tranche 2 Pricing Grid.
For purposes of the Tranche 1 Pricing Grid or the Tranche 2 Pricing Grid, as applicable
(each a “Pricing Grid”), (i) the Leverage Ratio shall be determined as of the end of
each fiscal quarter of the Borrower based upon the Borrower’s consolidated financial
statements delivered pursuant to Section 5.01(a) or (b) and (ii) each change in the
Applicable Rate resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date three Business Days after delivery to the
Administrative Agent of such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such change;
provided, further, that the Leverage Ratio shall be deemed to be in Category
1 of the applicable
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Pricing Grid (A) at any time that an Event of Default has occurred and is continuing or (B)
if the Borrower fails to deliver the consolidated financial statements required to be
delivered by it pursuant to Section 5.01(a) or (b) during the period from the expiration of
the time for delivery thereof until such consolidated financial statements are delivered.
“Class”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans constituting such Borrowing, are Syndicated Revolving Credit Loans,
Syndicated Term Loans, Competitive Loans or Swingline Loans. For the avoidance of doubt,
except as otherwise expressly provided herein, (a) the Tranche 1 Revolving Credit
Commitments and the Tranche 2 Revolving Credit Commitments (and the Revolving Credit Loans
made thereunder) shall be considered to be the same Class and (b) the Tranche 1 Term Loans
and the Tranche 2 Term Loans shall be considered to be the same Class.
“Commitment” means a Revolving Credit Commitment, a New Tranche 2 Revolving
Credit Commitment, a Term Loan Commitment, a New Tranche 2 Term Loan Commitment, an
Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment, or any
combination thereof (as the context requires) and without duplication.
“Consolidated EBITDA” means, for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in accordance with
GAAP), of the following:
(a) Consolidated Net Income for such period;
plus (b) without duplication and to the extent reflected as a charge in the
income statement for such period, the sum of:
(i) income tax expense;
(ii) Consolidated Interest Expense, amortization or writeoff of debt discount
and debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness (including the Loans);
(iii) depreciation and amortization expense, including amortization of
intangibles (including, but not limited to, goodwill);
(iv) transaction costs, fees and expenses related to the Arrow Acquisition, the
Transactions and the Senior Notes Transactions in an aggregate amount not exceeding
$30,000,000;
(v) non-recurring charges and expenses related to the closing of certain of the
Borrower’s facilities in an aggregate amount not exceeding $15,000,000 through
September 30, 2008;
(vi) non-recurring integration costs and expenses related to the Arrow
Acquisition in an aggregate amount not exceeding $45,000,000 for the period from the
Effective Date through December 31, 2009;
(vii) non-cash costs associated with inventory purchase price adjustments and
in-process research and development for the period from the Effective Date through
December 31, 2008;
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(viii) non-cash stock-based compensation expense relating to stock options and
restricted stock granted to employees and directors, and cash-based option expenses
and change of control payments related to the Arrow Acquisition in an aggregate
amount not exceeding $45,000,000 through September 30, 2008;
(ix) other extraordinary, unusual or non-recurring non-cash charges;
(x) net cost savings and other acquisition synergies directly attributable to
the Arrow Acquisition within one year of the date hereof that are projected by the
Borrower in good faith to result therefrom and supportable or quantifiable by
appropriate records in an aggregate amount not exceeding (A) $34,400,000 for the
period of four consecutive fiscal quarters ended September 30, 2007, (B) $33,000,000
for the period of four consecutive fiscal quarters ended December 31, 2007, (C)
$29,000,000 for the period of four consecutive fiscal quarters ended Xxxxx 00, 0000,
(X) $24,000,000 for the period of four consecutive fiscal quarters ended June 30,
2008 and (E) $17,000,000 for the period of four consecutive fiscal quarters ended
September 30, 2008 (it being understood that any amounts to be added to Consolidated
Net Income for any such period pursuant to this clause (x) shall not include any
amounts that have been taken into account in the determination of the Consolidated
Net Income for such period); and
(xi) if at any time on or after the Amendment No. 3 Effective Date either (A)
all of the outstanding Senior Notes have been paid or prepaid in full or (B) all of
the outstanding Senior Notes (and the related Senior Note Purchase Agreements) shall
have been amended to provide for an add-back for purposes of the definition
contained therein corresponding to this definition for (I) transaction costs, fees
and expenses related to the prepayment of Term Loans contemplated by Section 4.02(c)
of Amendment No. 3 and/or (II) make-whole amounts and/or prepayment penalties or
premiums paid by the Borrower on or after the Amendment No. 3 Effective Date in
respect of the prepayment of any Senior Notes, then, effective upon written notice
by the Borrower to the Administrative Agent of such payment or prepayment or upon
receipt by the Administrative Agent of a signed copy of such amendment(s) reasonably
acceptable to the Administrative Agent, as applicable, this definition shall
automatically be deemed amended to include (x) in the case of (A) above, both such
add-backs referred to in (I) and (II) above and (y) in the case of (B) above, either
or both of such add-backs to the extent permitted under the Senior Notes as so
amended;
minus (c) to the extent included in the statement of such Consolidated Net
Income for such period, extraordinary, unusual or non-recurring income or gains;
provided that with respect to any such period in which (x) the Arrow Acquisition
shall have been consummated, (y) any Person consolidates with or merges with the Borrower or
any Subsidiary, or conveys, transfers or leases all or substantially all of its assets in a
single transaction or series of transactions to the Borrower or any Subsidiary, and
concurrently therewith becomes a Subsidiary, in a transaction constituting a Material
Acquisition or (z) any Person ceases to be a Subsidiary during such period, or the Borrower
or any Subsidiary shall have made a Material Disposition, EBITDA for such period shall be
calculated on a pro forma basis so as to give effect to such event as of the first day of
such period; provided, further, that any operations classified as
“discontinued operations” shall be included in the calculation of Consolidated EBITDA. As
used in this definition, “Material Acquisition” means any Acquisition of property or
series of related Acquisitions that involves the payment of consideration by the Borrower
and its Subsidiaries in
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excess of $10,000,000; and “Material Disposition” means any Disposition of property
or series of related Dispositions of property that yields gross proceeds to the Borrower and
its Subsidiaries in excess of $10,000,000.
“Convertible Notes” means the convertible notes of the Borrower issued pursuant
to Section 6.01(i).
“Credit Party” means the Administrative Agent, any Issuing Lender, the
Swingline Lender and any other Revolving Credit Lender.
“Dollar Revolving Credit Sub-Commitment” means, with respect to each Dollar
Revolving Credit Lender, the commitment, if any, of such Dollar Revolving Credit Lender to
make Syndicated Revolving Credit Loans in Dollars and to acquire participations in Letters
of Credit denominated in Dollars and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender’s Dollar Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced pursuant to Section 2.09 or increased
pursuant to Section 2.20 from time to time and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The amount of each
Revolving Credit Lender’s Dollar Revolving Credit Sub-Commitment under the respective
Tranches as of the Amendment No. 3 Effective Date is set forth on Schedule 2.01, or in the
Assignment and Assumption or other agreement entered into under Section 2.20 pursuant to
which such Lender shall have assumed its Dollar Revolving Credit Commitment, as applicable.
“Guarantors” means (a) each Domestic Subsidiary of the Borrower as of the
Effective Date (after giving effect to the Arrow Acquisition, but excluding any Excluded
Subsidiary and any Released Subsidiary) and (b) each other Subsidiary of the Borrower that
shall become a Guarantor pursuant to Section 5.09, in each case so long as such Subsidiary
shall remain a Guarantor party hereto.
“Incremental Lender” has the meaning assigned to such term in Section 2.20.
“Incremental Loan Effective Date” has the meaning assigned to such term in
Section 2.20.
“Incremental Revolving Credit Commitment” has the meaning assigned to such term
in Section 2.20.
“Incremental Revolving Credit Lender” has the meaning assigned to such term in
Section 2.20.
“Incremental Term Lender” has the meaning assigned to such term in Section
2.20.
“Incremental Term Loan” has the meaning assigned to such term in Section 2.20.
“Incremental Term Loan Commitment” has the meaning assigned to such term in
Section 2.20.
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a party hereto pursuant to an Assignment and Assumption or other agreement
entered into pursuant to Section 2.20, other than any such Person that ceases to be a party
hereto
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pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term
“Lenders” includes the Swingline Lender.
“Multicurrency Revolving Credit Sub-Commitment” means, with respect to each
Multicurrency Revolving Credit Lender, the commitment, if any, of such Multicurrency
Revolving Credit Lender to make Syndicated Revolving Credit Loans and to acquire
participations in Letters of Credit hereunder, in each case in Dollars or an Agreed Foreign
Currency, expressed as a Dollar amount representing the Dollar Equivalent of the maximum
aggregate amount of such Lender’s Multicurrency Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced pursuant to Section 2.09 or increased pursuant to Section 2.20
from time to time and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04. The amount of each Revolving Credit Lender’s
Multicurrency Revolving Credit Sub-Commitment under the respective Tranches as of the
Amendment No. 3 Effective Date is set forth on Schedule 2.01, or in the Assignment and
Assumption or other agreement entered into under Section 2.20 pursuant to which such Lender
shall have assumed its Multicurrency Revolving Credit Commitment, as applicable.
“New Tranche 2 Revolving Credit Lender” means a Person (including a Revolving
Credit Lender immediately prior to the Amendment No. 3 Effective Date) which has agreed
pursuant to an Amendment No. 3 Lender Addendum to be a Tranche 2 Revolving Credit Lender and
provide a New Tranche 2 Revolving Credit Commitment as of the Amendment No. 3 Effective Date
(which may be effected by assignment of all or a portion of one or more Revolving Credit
Commitments from one or more existing Revolving Credit Lenders as of the Amendment No. 3
Effective Date).
“New Tranche 2 Revolving Credit Commitment” means, with respect to each New
Tranche 2 Revolving Credit Lender, the Tranche 2 Revolving Credit Commitment of such Lender
in the amount set forth on Schedule 2.01.
“New Tranche 2 Term Lender” means a Person (including a Term Lender immediately
prior to the Amendment No. 3 Effective Date) which has agreed pursuant to an Amendment No. 3
Lender Addendum to be a Tranche 2 Term Lender and provide a New Tranche 2 Term Loan
Commitment as of the Amendment No. 3 Effective Date (which may be effected by assignment of
all or a portion of one or more Term Loans from one or more existing Term Lenders as of the
Amendment No. 3 Effective Date).
“New Tranche 2 Term Loan Commitment” means, with respect to each New Tranche 2
Term Lender, the commitment of such Lender to make a Syndicated Term Loan hereunder on the
Amendment No. 3 Effective Date in the amount set forth on Schedule 2.01.
“Prepayment Event” means (a) any Asset Sale, (b) any Prepayment Asset Sale, (c)
any Recovery Event, (d) any the issuance or incurrence of any Indebtedness or (e) any
Qualifying Convertible Notes Payment.
“Qualifying Convertible Notes” means (a) the Convertible Notes issued as of the
Amendment No. 3 Effective Date and (b) any other “Qualifying Convertible Notes” (as such
term is defined in the Senior Note Purchase Agreements, as amended as of the Convertible
Notes Amendments Effective Date (as such term is defined in Amendment No. 3)) issued after
the Amendment No. 3 Effective Date.
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“Qualifying Convertible Notes Payment” means the sum of all payments in cash by
the Borrower in respect of Qualifying Convertible Notes to any holders thereof made or paid
in connection with the exercise by such holders of their right to require repurchase upon a
fundamental change (as defined under the indenture governing such series of Qualifying
Convertible Notes) and/or in connection with the exercise by such holders of their
conversion rights and the Borrower satisfies its conversion obligation upon such exercise in
full or in part in cash, and the aggregate amount of all such cash payments exceeds
$30,000,000 (such amount, the “Qualifying Convertible Notes Payment Amount”);
provided that, following the occurrence of the first Qualifying Convertible Notes
Payment (if any), the Qualifying Convertible Notes Payment Amount shall be reduced from
$30,000,000 to $5,000,000.
“Qualifying Convertible Notes Payment Amount” has the meaning assigned to such
term in the definition of “Qualifying Convertible Notes Payment”.
“Released Subsidiary” means any Subsidiary listed on Schedule 1 to Amendment
No. 3.
“Relevant Application Date” means (a) with respect to any issuance or
incurrence of any Indebtedness, the date of such incurrence or issuance, (b) with respect to
any Recovery Event, (i) the fifth Business Day after such Recovery Event (unless, prior
thereto, a Reinvestment Notice shall have been delivered to the Administrative Agent in
respect thereof) and (ii) each Reinvestment Prepayment Date with respect thereto, (c) with
respect to any Asset Sale, the fifth Business Day after such Asset Sale, (d) with respect to
any Prepayment Asset Sale, the date on which the Term Loans are required to be prepaid
pursuant to the proviso contained in Section 6.04(f), (e) with respect to any Qualifying
Convertible Notes Payment, the date of such payment is made by the Borrower and (f) with
respect to any Prepayment Event, the Business Day immediately following the expiration of
the relevant period for acceptance of the offer to prepay the Senior Notes under the
relevant Senior Note Purchase Agreement as a result of such Prepayment Event.
“Relevant Share” means, with respect to any Prepayment Event, (a) as of the
initial Relevant Application Date therefor, a ratio equal to (i) the aggregate outstanding
principal amount of the Term Loans on such date over (ii) the sum of the aggregate
outstanding principal amount of the Term Loans plus the aggregate outstanding
principal amount of the Senior Notes under the Senior Note Purchase Agreements that require
the Borrower to make an offer to prepay such Senior Notes as a result of such Prepayment
Event and (b) as of the relevant Business Day with respect to such Prepayment Event
determined under clause (f) of the definition of “Relevant Application Date”, the remaining
portion of such Net Cash Proceeds (if any) that the Borrower is not required to apply to the
prepayment of such Senior Notes pursuant to such Senior Note Purchase Agreements.
“Revolving Credit Commitment” means a Tranche 1 Revolving Credit Commitment or
a Tranche 2 Revolving Credit Commitment, and shall include an Incremental Revolving Credit
Commitment.
“Revolving Credit Commitment Termination Date” means (a) with respect to the
Tranche 1 Revolving Credit Commitments, the Tranche 1 Revolving Credit Commitment
Termination Date, and (b) with respect to the Tranche 2 Revolving Credit Commitments, the
Tranche 2 Revolving Credit Commitment Termination Date.
“Revolving Credit Lender” means a Tranche 1 Revolving Credit Lender or a
Tranche 2 Revolving Credit Lender (including an Incremental Revolving Credit Lender).
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“Revolving Credit Loans” means the Tranche 1 Revolving Credit Loans and the
Tranche 2 Revolving Credit Loans.
“Term Lender” means a Tranche 1 Term Lender, a Tranche 2 Term Lender or
(without duplication) an Incremental Term Lender.
“Term Loan Maturity Date” means (a) with respect to the Tranche 1 Term Loans,
the Tranche 1 Term Loan Maturity Date, and (b) with respect to the Tranche 2 Term Loans, the
Tranche 2 Term Loan Maturity Date.
“Term Loans” means the Tranche 1 Term Loans, the Tranche 2 Term Loans and
(without duplication) the Incremental Term Loans.
“Tranche” means (a) when used in reference to any Revolving Credit Lender,
Revolving Credit Commitment or Revolving Credit Loan or Borrowing, refers to whether such
Lender is a Tranche 1 Revolving Credit Lender or a Tranche 2 Revolving Credit Lender, such
Revolving Credit Commitment is a Tranche 1 Revolving Credit Commitment or a Tranche 2
Revolving Credit Commitment or such Revolving Credit Loan is a Tranche 1 Revolving Credit
Loan or a Tranche 2 Revolving Credit Loan or (b) when used in reference to any Term Lender
or Term Loan or Borrowing, refers to whether such Lender is a Tranche 1 Term Lender or a
Tranche 2 Term Lender or such Term Loan is a Tranche 1 Term Loan or a Tranche 2 Term Loan.
“Tranche 1 Pricing Grid” means the following pricing grid:
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| Commitment Fee | ||||||||||||||
| Rate | ||||||||||||||
| (Tranche 1 | ||||||||||||||
| Leverage | ABR | Eurocurrency | Revolving Credit | |||||||||||
| Ratio | Spread | Spread | Commitments only) | |||||||||||
Category 1: |
> 3.75 to 1 | 0.50 | % | 1.50 | % | 0.30 | % | |||||||
Category 2: |
> 3.00 to 1 and < 3.75 to 1 | 0.25 | % | 1.25 | % | 0.25 | % | |||||||
Category 3: |
> 2.25 to 1 and < 3.00 to 1 | 0 | % | 1.00 | % | 0.225 | % | |||||||
Category 4: |
> 1.50 to 1 and < 2.25 to 1 | 0 | % | 0.875 | % | 0.20 | % | |||||||
Category 5: |
> 0.75 to 1 and < 1.50 to 1 | 0 | % | 0.75 | % | 0.175 | % | |||||||
Category 6: |
< 0.75 to 1 | 0 | % | 0.625 | % | 0.15 | % | |||||||
“Tranche 1 Revolving Credit Availability Period” means the period from and
including the Effective Date to but excluding the earlier of the Tranche 1 Revolving Credit
Commitment Termination Date and the date of termination of the Tranche 1 Revolving Credit
Commitments.
“Tranche 1 Revolving Credit Commitment” means, with respect to each Tranche 1
Revolving Credit Lender, its Dollar Revolving Credit Sub-Commitment and/or its Multicurrency
Revolving Credit Sub-Commitment, if any.
“Tranche 1 Revolving Credit Commitment Termination Date” means October 1, 2012
(or if such day is not a Business Day, the immediately preceding Business Day).
“Tranche 1 Revolving Credit Lenders” means the Revolving Credit Lenders that
are not Tranche 2 Revolving Credit Lenders.
“Tranche 1 Revolving Credit Loans” means the loans made by the Tranche 1
Revolving Credit Lenders pursuant to Section 2.01(a)(i).
“Tranche 1 Term Lenders” means the Term Lenders that are not Tranche 2 Term
Lenders or Incremental Term Lenders.
“Tranche 1 Term Loan Maturity Date” means October 1, 2012 (or if such day is
not a Business Day, the immediately preceding Business Day).
“Tranche 1 Term Loans” means the term loans held by the Tranche 1 Term Lenders.
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“Tranche 1 Termination Date” means the date on which each of the following
shall have occurred: (a) the Tranche 1 Revolving Credit Commitment Termination Date, (b) no
Revolving Credit Exposure by the Tranche 1 Revolving Credit Lenders shall be outstanding and
(c) the Tranche 1 Term Loans shall be paid in full.
“Tranche 2 Pricing Grid” means the following pricing grid:
| Leverage | ABR | Eurocurrency | Commitment | |||||||||||
| Ratio | Spread | Spread | Fee Rate | |||||||||||
Category 1: |
> 3.75 to 1 | 1.75 | % | 2.75 | % | 0.50 | % | |||||||
Category 2: |
> 3.00 to 1 and < 3.75 to 1 |
1.50 | % | 2.50 | % | 0.50 | % | |||||||
Category 3: |
> 2.25 to 1 and < 3.00 to 1 |
1.25 | % | 2.25 | % | 0.375 | % | |||||||
Category 4: |
> 1.50 to 1 and < 2.25 to 1 |
1.00 | % | 2.00 | % | 0.375 | % | |||||||
Category 5: |
> 0.75 to 1 and < 1.50 to 1 |
0.75 | % | 1.75 | % | 0.375 | % | |||||||
Category 6: |
< 0.75 to 1 | 0.50 | % | 1.50 | % | 0.375 | % | |||||||
“Tranche 2 Revolving Credit Availability Period” means the period from and
including the Amendment No. 3 Effective Date to but excluding the earlier of the Tranche 2
Revolving Credit Commitment Termination Date and the date of termination of the Tranche 2
Revolving Credit Commitments.
“Tranche 2 Revolving Credit Commitment” means, with respect to each Tranche 2
Revolving Credit Lender, its Dollar Revolving Credit Sub-Commitment and/or its Multicurrency
Revolving Credit Sub-Commitment, if any.
“Tranche 2 Revolving Credit Commitment Termination Date” means October 1, 2014
(or if such day is not a Business Day, the immediately preceding Business Day).
“Tranche 2 Revolving Credit Lenders” means (a) each Revolving Credit Lender
with a Revolving Credit Commitment that has agreed pursuant to an Amendment No. 3 Lender
Addendum to be a “Tranche 2 Revolving Credit Lender”, (b) each New Tranche 2 Revolving
Credit Lender and (c) each Incremental Revolving Credit Lender.
“Tranche 2 Revolving Credit Loans” means the loans made by the Tranche 2
Revolving Credit Lenders pursuant to Section 2.01(a)(ii).
“Tranche 2 Term Lenders” means (a) each Term Lender which holds a Term Loan
that has agreed pursuant to an Amendment No. 3 Lender Addendum to be a “Xxxxxxx 0 Xxxx
Xxxxxx”
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xxxxxxxxx, (x) each New Tranche 2 Term Lender and (c) each Incremental Term Lender that
makes an Incremental Term Loan that is treated as a Tranche 2 Term Loan pursuant to Section
2.20.
“Tranche 2 Term Loan Maturity Date” means October 1, 2014 (or if such day is
not a Business Day, the immediately preceding Business Day).
“Tranche 2 Term Loan Principal Payment Dates” means (a) the Quarterly Dates of
each year, commencing with the Quarterly Date falling on or nearest to December 31, 2012
through the Quarterly Date falling on or nearest to June 30, 2014 and (b) the Tranche 2 Term
Loan Maturity Date.
“Tranche 2 Term Loans” means the term loans held by the Xxxxxxx 0 Xxxx Xxxxxxx.
B. The following definitions in Section 1.01 of the Credit Agreement shall be deleted in
their entirety: “Assuming Revolving Credit Lender”; “Increasing Revolving Credit
Lender”; “Principal Payment Date”; “Revolving Credit Commitment Increase” and
“Revolving Credit Commitment Increase Date”.
C. GAAP. Section 1.04 of the Credit Agreement will be amended and restated in its
entirety to read as follows:
“SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in accordance with
GAAP, as in effect from time to time; provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the operation of
any provision hereof (or if the Administrative Agent notifies the Borrower that the Required
Lenders request such elimination of a change in GAAP), regardless of whether any such notice
is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been withdrawn
or such provision is amended in accordance with Section 9.02. To enable the ready and
consistent determination of compliance with the covenants set forth in Article VI, the
Borrower will not change the last day of its fiscal year and fiscal quarters in effect on
the date hereof.”
2.03. Revolving Credit Loans. Section 2.01(a) of the Credit Agreement shall be
amended and restated in its entirety to read as follows:
“(a) Revolving Credit Loans.
(i) Subject to the terms and conditions set forth herein, (A) each Dollar Revolving
Credit Lender that is a Tranche 1 Revolving Credit Lender agrees to make Syndicated
Revolving Credit Loans in Dollars to the Borrower from time to time during the Tranche 1
Revolving Credit Availability Period in an aggregate principal amount that will not result
in (x) such Lender’s Dollar Revolving Credit Exposure exceeding such Lender’s Dollar
Revolving Credit Sub-Commitment, (y) the total Dollar Revolving Credit Exposures exceeding
the aggregate amount of the Dollar Revolving Credit Sub-Commitments or (z) the sum of the
total Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans exceeding the aggregate amount of the Revolving Credit Commitments and (B)
each Multicurrency Revolving Credit Lender that is a Tranche 1 Revolving Credit Lender
agrees to make Syndicated Revolving
- 12 -
Credit Loans in Dollars or in any Agreed Foreign Currency to the Borrower from time to
time during the Tranche 1 Revolving Credit Availability Period in an aggregate principal
amount that will not result in (x) such Lender’s Multicurrency Revolving Credit Exposure
exceeding such Lender’s Multicurrency Revolving Credit Sub-Commitment, (y) the total
Multicurrency Revolving Credit Exposures exceeding the aggregate amount of the Multicurrency
Revolving Credit Sub-Commitments or (z) the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans exceeding the
aggregate amount of the Revolving Credit Commitments.
(ii) Subject to the terms and conditions set forth herein, (A) each Dollar Revolving
Credit Lender that is a Tranche 2 Revolving Credit Lender agrees to make Syndicated
Revolving Credit Loans in Dollars to the Borrower from time to time during the Tranche 2
Revolving Credit Availability Period in an aggregate principal amount that will not result
in (x) such Lender’s Dollar Revolving Credit Exposure exceeding such Lender’s Dollar
Revolving Credit Sub-Commitment, (y) the total Dollar Revolving Credit Exposures exceeding
the aggregate amount of the Dollar Revolving Credit Sub-Commitments or (z) the sum of the
total Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans exceeding the aggregate amount of the Revolving Credit Commitments and (B)
each Multicurrency Revolving Credit Lender that is a Tranche 2 Revolving Credit Lender
agrees to make Syndicated Revolving Credit Loans in Dollars or in any Agreed Foreign
Currency to the Borrower from time to time during the Tranche 2 Revolving Credit
Availability Period in an aggregate principal amount that will not result in (x) such
Lender’s Multicurrency Revolving Credit Exposure exceeding such Lender’s Multicurrency
Revolving Credit Sub-Commitment, (y) the total Multicurrency Revolving Credit Exposures
exceeding the aggregate amount of the Multicurrency Revolving Credit Sub-Commitments or (z)
the sum of the total Revolving Credit Exposures plus the aggregate principal amount
of outstanding Competitive Loans exceeding the aggregate amount of the Revolving Credit
Commitments.
(iii) Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Syndicated Revolving Credit Loans.
(iv) Notwithstanding anything herein to the contrary, so long as any Tranche 1
Revolving Credit Commitment shall be in effect , but subject to Section 2.01(a)(v), the
Borrower will not borrow Revolving Credit Loans of any Tranche unless it shall
simultaneously borrow Revolving Credit Loans of the other Tranche(s) and, in the case of
Eurocurrency Loans, in the same Currency and with the same Interest Period, in an aggregate
amount such that the Revolving Credit Loan made by each Revolving Credit Lender on the
occasion of such borrowing shall equal its Applicable Dollar Percentage or Applicable
Multicurrency Percentage, as applicable, of the aggregate amount borrowed.
(v) Notwithstanding any other provision of this Agreement, at any time after the
Amendment No. 3 Effective Date any Tranche 1 Revolving Credit Lender may, with the agreement
of the Borrower and the consent of the Administrative Agent (such consent not to
unreasonably withheld), convert all (but not less than all) of its Tranche 1 Revolving
Credit Commitment and related Revolving Credit Exposure (including Tranche 1 Revolving
Credit Loans) to a Tranche 2 Revolving Credit Commitment and Revolving Credit Exposure of
such Tranche (including Tranche 2 Revolving Credit Loans), and as of the effective date of
such conversion such Lender’s Revolving Credit Commitment (and related Revolving Credit
Exposure) shall be deemed to be a Tranche 2 Revolving Credit Commitment (and such Revolving
Credit Exposure shall be outstanding under such Tranche).”
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2.04. Term Loans. Section 2.01(b) of the Credit Agreement shall be amended by
inserting, immediately after the first sentence thereof, the following new sentences to read as
follows:
“Subject to the terms and conditions set forth herein, each New Tranche 2 Term Lender agrees
to make a Syndicated Term Loan in Dollars to the Borrower on the Amendment No. 3 Effective
Date in a principal amount equal to its New Tranche 2 Term Loan Commitment; provided
that, notwithstanding anything herein to the contrary, such new Syndicated Term Loans shall
be proportionately in the same Types of Loans as the Term Loans outstanding as of the
Amendment No. 3 Effective Date (after giving effect to the prepayment of such Term Loans
contemplated by Section 4.02(c) of Amendment No. 3) and, in the case of Eurocurrency Loans,
having an Interest Period or Interest Periods ending on the last day(s) of the Interest
Period(s) for such outstanding Eurocurrency Term Loans. Notwithstanding any other provision
of this Agreement, at any time after the Amendment No. 3 Effective Date any Tranche 1 Term
Lender may, with the agreement of the Borrower and the consent of the Administrative Agent
(such consent not to unreasonably withheld), convert all (but not less than all) of its
Tranche 1 Term Loan to a Tranche 2 Term Loan.”
2.05. Loans and Borrowings. Section 2.02(d) of the Credit Agreement shall be amended
and restated in its entirety to read as follows:
“(d) Limitations on Interest Periods. Notwithstanding any other provision of
this Agreement, the Borrower shall not be entitled to request (or to elect to convert to or
continue as a Syndicated Eurocurrency Borrowing) (i) any Revolving Credit Eurodollar
Borrowing if the Interest Period requested therefor would end after (x) at any time prior to
the Tranche 1 Revolving Credit Commitment Termination Date, the Tranche 1 Revolving Credit
Commitment Termination Date or (y) thereafter, the Tranche 2 Revolving Credit Commitment
Termination Date or (ii) any Term Eurodollar Borrowing if the Interest Period requested
therefor would end after (x) at any time prior to the Tranche 1 Term Loan Maturity Date, the
Tranche 1 Term Loan Maturity Date or (y) thereafter, the Tranche 2 Term Loan Maturity Date.”
2.06. Competitive Bid Procedure. Section 2.04(a) of the Credit Agreement shall be
amended by replacing the words “during the Revolving Credit Availability Period” with the words
“prior to the termination of the Revolving Credit Commitments”.
2.07. Swingline Loans. Section 2.05 of the Credit Agreement shall be amended as
follows:
A. Section 2.05(a) shall be amended by replacing the words “during the Revolving Credit
Availability Period” with the words “prior to the termination of the Revolving Credit Commitments”.
B. Section 2.05(c) shall be amended by amended by inserting a new sentence at the end of the
second paragraph hereof to read as follows:
“For avoidance of doubt, so long as any Tranche 1 Revolving Credit Commitment shall be in
effect, the allocations contemplated by the immediately preceding sentence shall be made
ratably between the Tranche 1 Revolving Credit Commitments and the Tranche 2 Revolving
Credit Commitments, such that the Revolving Credit Lenders shall have participations in the
outstanding Swingline Loans in accordance with their respective Dollar Applicable Percentage
or Multicurrency Applicable Percentage (as applicable) thereof.
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2.08. Letters of Credit. Section 2.06 of the Credit Agreement shall be amended as
follows:
A. Section 2.06(a) shall be amended by replacing the words “during the Revolving Credit
Availability Period” in the first sentence thereof with the words “prior to the termination of the
Revolving Credit Commitments”.
B. Section 2.06(c) shall be amended by inserting a new sentence at the end thereof to read as
follows:
“Notwithstanding any provision in this Agreement to the contrary, at no time prior to the
Tranche 1 Revolving Credit Commitment Termination Date shall the sum of the total LC
Exposure with respect to Letters of Credit that expire after the fifth Business Day prior to
the Tranche 1 Revolving Credit Commitment Termination Date plus (without
duplication) the total Revolving Credit Exposure of the Tranche 2 Revolving Credit Lenders
plus the aggregate principal amount of outstanding Competitive Loans made by the
Tranche 2 Revolving Credit Lenders exceed the aggregate amount of the Tranche 2 Revolving
Credit Commitments.”
C. Section 2.06(d) shall be amended and restated in its entirety to read as follows:
“(d) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date twelve months after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension thereof,
twelve months after the then-current expiration date of such Letter of Credit, so long as
such renewal or extension occurs within three months of such then-current expiration date)
and (ii) the date that is five Business Days prior to the Tranche 1 Revolving Credit
Commitment Termination Date; provided that Letters of Credit may expire after the
date specified in clause (ii) above so long as (x) the date of issuance of such Letter of
Credit is after the Tranche 1 Revolving Credit Commitment Termination Date or (y) on the
date of such issuance, the sum of (1) the face amount of such Letter of Credit plus
(2) the aggregate undrawn amount of all other outstanding Letters of Credit with an
expiration date after the fifth Business Day prior to the Tranche 1 Revolving Credit
Commitment Termination Date plus (3) (without duplication) the sum of the total
Revolving Credit Exposure of the Tranche 2 Revolving Credit Lenders plus the
aggregate principal amount of outstanding Competitive Loans made by the Tranche 2 Revolving
Credit Lenders, shall not exceed the aggregate amount of the Tranche 2 Revolving Credit
Commitments; provided, further, that in no event shall any such Letter of
Credit expire later than five Business Days prior to the Tranche 2 Revolving Credit
Commitment Termination Date.”
D. Section 2.06(e) shall be amended by inserting a new paragraph at the end thereof to read
as follows:
“Notwithstanding anything contained herein or in any other Loan Document to the
contrary, unless the Revolving Credit Commitments shall theretofore have terminated pursuant
to Article VII, as of the Tranche 1 Revolving Credit Commitment Termination Date, the
interests and participations of the Tranche 1 Revolving Credit Lenders in the Letters of
Credit (if any) then outstanding shall automatically terminate, whereupon (i) the Tranche 1
Revolving Credit Lenders shall have no liability arising from, relating to or in connection
with such interests and participations or otherwise in respect of such Letters of Credit and
(ii) such interests and participations in such Letters of Credit shall automatically and
without further action be re-allocated to the extent necessary such that the interests and
participations in such Letters of Credit
- 15 -
hereunder shall be held by the Tranche 2 Revolving Credit Lenders ratably in proportion
to their respective Tranche 2 Revolving Credit Commitments.”
2.09. Change of Commitments. Section 2.09 of the Credit Agreement shall be amended
as follows:
A. Section 2.09(a) shall be amended and restated in its entirety to read as follows:
“(a) Scheduled Termination. Unless previously terminated, (i) the New Tranche
2 Term Loan Commitments shall terminate at 5:00 p.m., New York City time, on the Amendment
No. 3 Effective Date, (ii) the Tranche 1 Revolving Credit Commitments shall terminate on the
Tranche 1 Revolving Credit Commitment Termination Date and (iii) the Tranche 2 Revolving
Credit Commitments shall terminate on the Tranche 2 Revolving Credit Commitment Termination
Date.”
B. Section 2.09(c) shall be amended by inserting a new sentence at the end thereof to read as
follows:
“For avoidance of doubt, at any time prior to the Tranche 1 Revolving Credit Commitment
Termination Date each reduction of the Revolving Credit Commitments (and either Revolving
Credit Sub-Commitment) shall be applied ratably to the Tranche 1 Revolving Credit
Commitments and the Tranche 2 Revolving Credit Commitments.”
C. Section 2.09(d) shall be deleted in its entirety, and each reference in the Credit
Agreement to “Section 2.09(d)” shall be deemed to refer to “Section 2.20” of the Credit Agreement.
2.10. Repayment of Loans. Section 2.10 of the Credit Agreement shall be amended as
follows:
A. Section 2.10(a)(i) shall be amended and restated in its entirety to read as follows:
“(i) The Borrower hereby unconditionally promises to pay to the Administrative Agent
(A) for the account of each Tranche 1 Revolving Credit Lender the outstanding principal
amount of the Syndicated Tranche 1 Revolving Credit Loans of such Lender on the Tranche 1
Revolving Credit Commitment Termination Date and (B) for the account of each Tranche 2
Revolving Credit Lender the outstanding principal amount of the Syndicated Tranche 2
Revolving Credit Loans of such Lender on the Tranche 2 Revolving Credit Commitment
Termination Date.”
B. Section 2.10(a)(iii) shall be amended and restated in its entirety to read as follows
“(iii) The Borrower hereby unconditionally promises to pay to the Swingline Lender the
then unpaid principal amount of each Swingline Loan (x) if made on any date prior to the
Tranche 1 Revolving Credit Commitment Termination Date, on the earlier of the Tranche 1
Revolving Credit Commitment Termination Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least two Business Days
after such Swingline Loan is made and (y) if made on or after the Tranche 1 Revolving Credit
Commitment Termination Date, on the earlier of the Tranche 2 Revolving Credit Commitment
Termination Date and the first date after such Swingline Loan is made that is the 15th or
last day of a calendar month and is at least two Business Days after such Swingline Loan is
made; provided that on each date that a Syndicated Revolving Credit Borrowing or
Competitive Borrowing is made, the Borrower shall repay all Swingline Loans then
outstanding.”
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C. Section 2.10(a)(iv) shall be amended and restated in its entirety to read as follows:
“(iv) (A) The Borrower hereby unconditionally promises to pay to the Administrative
Agent for account of each Tranche 1 Term Lender the outstanding principal amount of the
Tranche 1 Term Loans held by such Tranche 1 Term Lender on the Tranche 1 Term Loan Maturity
Date.
(B) The Borrower hereby unconditionally promises to pay to the Administrative Agent
for account of each Tranche 2 Term Lender the principal amount of the Tranche 2 Term Loans
held by such Tranche 2 Term Lender in 8 consecutive quarterly installments payable on the
Tranche 2 Term Loan Principal Payment Dates, the aggregate principal amount to be paid on
each Tranche 2 Principal Payment Date in respect of all Tranche 2 Term Loans held by the
Tranche 2 Term Lenders to be in an amount equal to the percentage specified below of the
aggregate original principal amount of the Tranche 2 Term Loans outstanding as of (and after
giving effect to) Amendment No. 3 Effective Date (with the final such installment on the
Tranche 2 Term Loan Maturity Date being in the aggregate principal amount of Tranche 2 Term
Loans then outstanding):
| Tranche 2 Principal Payment Date | Percentage of Original | |||
| Falling on or Nearest to: | Principal Amount | |||
December 31, 2012 |
2.5 | % | ||
March 31, 2013 |
2.5 | % | ||
June 30, 2013 |
2.5 | % | ||
September 30, 2013 |
2.5 | % | ||
December 31, 2013 |
2.5 | % | ||
March 31, 2014 |
2.5 | % | ||
June 30, 2014 |
2.5 | % | ||
Tranche 2 Term Loan Maturity Date |
Balance. | |||
(C) The Borrower hereby unconditionally promises to pay to the Administrative Agent
for account of each Incremental Term Lender the principal amount of each Incremental Term
Loan held by such Incremental Term Lender on the relevant principal payment dates and in
such amounts as shall have been agreed pursuant to Section 2.20 (with the final payment
thereof to be made on the final maturity date thereof as so agreed); provided that,
if such Incremental Term Loan shall be treated as a Tranche 2 Term Loan pursuant to Section
2.20, such Incremental Term Loan shall be paid in accordance with sub-clause (B) above and
the aggregate amount of the principal installments required thereunder shall be adjusted for
the amount of such Incremental Term Loan at the time made.”
D. Section 2.10(b) shall be amended and restated in its entirety to read as follows:
“(b) Adjustment of Term Loan Amortization Schedules. Any optional prepayment
of Term Loans pursuant to Section 2.11(a) shall be applied ratably to all then outstanding
Term Loans and, with respect to the principal installments of each tranche of Term Loans, in
the order determined in accordance with Section 2.11(a). Any mandatory prepayment of the
Term Loans pursuant to Section 2.11(b) shall be applied ratably to all then outstanding Term
Loans and, in the case of each tranche of Term Loans, in the order specified in Section
2.11(b).”
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2.11. Prepayment of Loans. Section 2.11 of the Credit Agreement shall be amended as
follows:
A. Section 2.11(b) shall be amended by inserting a new paragraph (v), immediately after
paragraph (iv), to read as follows:
“(v) If after the Amendment No. 3 Effective Date a Qualifying Convertible Notes
Payment shall occur, an amount equal to the Relevant Share of the Qualifying Convertible
Notes Payment Amount shall be applied on each Relevant Application Date towards the
prepayment of the Term Loans as set forth in Section 2.11(b)(iv); provided that, if
at any time on or after the Amendment No. 3 Effective Date either (A) all of the outstanding
Senior Notes have been paid or prepaid in full or (B) all of the outstanding Senior Notes
(and the related Senior Note Purchase Agreements) shall have been amended to delete the
provision corresponding to this clause (v), then, effective upon written notice by the
Borrower to the Administrative Agent of such payment or prepayment or upon receipt by the
Administrative Agent of a signed copy of such amendment(s) reasonably acceptable to the
Administrative Agent, as applicable, this Section 2.11(b)(v) shall automatically cease to be
in effect.”
B. A new Section 2.11(e), immediately after Section 2.11(d), to read as follows:
“(e) Treatment of Tranches. Notwithstanding anything herein to the contrary,
(i) at any time prior to the Tranche 1 Revolving Credit Commitment Termination Date and the
repayment in full of all Tranche 1 Revolving Credit Loans, with respect to any optional or
mandatory prepayment of Revolving Credit Loans under this Section, such prepayment shall be
applied ratably between the Tranche 1 Revolving Credit Loans and the Tranche 2 Revolving
Credit Loans and (ii) with respect to any optional or mandatory prepayment of Term Loans
under this Section, such prepayment shall be applied ratably between the Tranche 1 Term
Loans and the other Term Loans.”
2.12. Fees.
A. Section 2.12(a) of the Credit Agreement shall be amended and restated in its entirety to
read as follows:
“(a) Commitment Fee. The Borrower agrees to pay to the Administrative Agent
for account of each Revolving Credit Lender a commitment fee, which shall accrue at the
Applicable Rate on the average daily unused amount of the Revolving Credit Commitment of any
Tranche of such Revolving Credit Lender during the period from and including the Effective
Date to but excluding the earlier of the date the Revolving Credit Commitments of such
Tranche terminate and the Revolving Credit Commitment Termination Date of such Tranche.
Accrued commitment fees shall be payable on each Quarterly Date and on the earlier of the
date the Revolving Credit Commitments of the applicable Tranche terminate and the Revolving
Credit Commitment Termination Date of such Tranche, commencing on the first such date to
occur after the date hereof. All commitment fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). For purposes of computing commitment fees, the Revolving
Credit Commitment of any Tranche of a Revolving Credit Lender shall be deemed to be used to
the extent of the outstanding Revolving Credit Loans and LC Exposure of such Revolving
Credit Lender (and the Swingline Exposure of such Revolving Credit Lender shall be
disregarded for such purpose).”
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B. Section 2.12(b) of the Credit Agreement shall be amended and restated in its entirety to
read as follows:
“(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for account of each Revolving Credit Lender a participation fee with
respect to the portion of the LC Exposure of such Revolving Credit Lender attributable to
its Revolving Credit Commitments of any Tranche, which shall accrue at a rate per annum
equal to the Applicable Rate applicable to interest on Syndicated Eurocurrency Revolving
Credit Loans of such Tranche on the average daily amount of such Revolving Credit Lender’s
LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the later of the
date on which such Revolving Credit Lender’s Revolving Credit Commitment of such Tranche
terminates and the date on which such Revolving Credit Lender ceases to have any LC
Exposure, and (ii) to the respective Issuing Lender a fronting fee, which shall accrue at
the rate or rates per annum separately agreed upon between the Borrower and such Issuing
Lender on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) in respect of Letters of Credit issued by
such Issuing Lender during the period from and including the Effective Date to but excluding
the later of the date of termination of the Revolving Credit Commitments and the date on
which there ceases to be any LC Exposure, as well as such Issuing Lender’s standard fees
with respect to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees shall be payable
quarterly in arrears on the applicable Quarterly Date, commencing on the first such date to
occur after the Effective Date; provided that all such fees attributable to
Revolving Credit Commitments of any Tranche shall be payable on the date on which such
Revolving Credit Commitments terminate and any such fees accruing after the date on which
such Revolving Credit Commitments terminate shall be payable on demand. Any other fees
payable to any Issuing Lender pursuant to this paragraph shall be payable within 10 days
after demand. All participation fees and fronting fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).”
C. Section 2.12 of the Credit Agreement shall be amended by inserting a new paragraph (e) at
the end thereof to read as follows:
“(e) Additional Fees. Prior to the Tranche 1 Revolving Credit Commitment
Termination Date, to the extent the Applicable Rate for commitment fees payable for any
period under paragraph (a) of this Section to the Tranche 2 Revolving Credit Lenders shall
exceed the Applicable Rate for commitment fees payable for such period thereunder to the
Tranche 1 Revolving Credit Lenders, (i) for purposes of such paragraph (a), the commitment
fees payable for such period thereunder to all Revolving Credit Lenders shall be calculated
and paid at the Applicable Rate applicable to the Tranche 1 Revolving Credit Lenders and
(ii) the Borrower agrees to pay to the Tranche 2 Revolving Credit Lenders additional fees
from time to time in consideration of the agreements of the Tranche 2 Revolving Credit
Lenders under Amendment No. 3 for such period equal to (A) the difference between the
commitment fees that would have payable for such period to the Tranche 2 Revolving Credit
Lenders under such paragraph (a) had such fees been calculated at the Applicable Rate for
the Tranche 2 Revolving Credit Lenders (without regard to clause (i) above) and (B) the
commitment fees payable to the Tranche 2 Revolving Credit Lenders for such period under such
clause (i) (which fees shall payable at the same times as the fees payable under such clause
(i) and calculated on the same basis).”
2.13. Interest. Section 2.13 of the Credit Agreement shall be amended as follows:
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A. Section 2.13(a) shall be amended by inserting at the end thereof, immediately prior to the
period, the following words:
“; provided that, for purposes hereof, from and after the Amendment No. 3 Effective
Date, Swingline Loans shall bear interest at the Applicable Rate for ABR Borrowings under
the Tranche 2 Revolving Credit Commitments”.
B. Section 2.13(d) shall be amended by inserting in the last line thereof, immediately after
the words “ABR Loans”, the words “of any Tranche”.
C. Section 2.13(e) shall be amended and restated in its entirety to read as follows:
“(e) Payment of Interest. Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and, in the case of Syndicated Revolving
Credit Loans of any Tranche, upon termination of the Revolving Credit Commitments of such
Tranche; provided that (i) interest accrued pursuant to paragraph (d) of this
Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any
Loan (other than a prepayment of a Syndicated ABR Revolving Credit Loan prior to the
applicable Revolving Credit Commitment Termination Date), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Syndicated Eurocurrency Borrowing denominated in
Dollars prior to the end of the Interest Period therefor, accrued interest on such Borrowing
shall be payable on the effective date of such conversion.”.
2.14. Payments. Section 2.18(f) of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
“(f) Certain Deductions by the Administrative Agent. If any Lender shall fail
to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(e), 2.06(f),
2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and
notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by
the Administrative Agent for the account of such Lender and for the benefit of the
Administrative Agent, the Swingline Lender or any Issuing Lender to satisfy such Lender’s
obligations to it under such Sections until all such unsatisfied obligations are fully paid,
and/or (ii) hold any such amounts in a segregated account as cash collateral for, and
application to, any future funding obligations of such Lender under such Sections; in the
case of each of (i) and (ii) above, in any order as determined by the Administrative Agent
in its discretion.”
2.15. Incremental Commitments and Loans. A new Section 2.20 of the Credit Agreement
shall be inserted, immediately following Section 2.19 of the Credit Agreement, to read as follows
(and the Table of Contents of the Credit Agreement will be deemed amended to refer to such new
Section):
“SECTION 2.20. Incremental Commitments and Loans. The Borrower may, at any
time after the Amendment No. 3 Effective Date by notice to the Administrative Agent,
request:
(a) one or more increases in the aggregate amount of the Tranche 2 Revolving Credit
Commitments hereunder by (i) having an existing Tranche 2 Revolving Credit Lender increase
the amount of its Tranche 2 Revolving Credit Commitment then in effect and/or (ii) adding as
a new Tranche 2 Revolving Credit Lender with a new Dollar Revolving Credit Sub-Commitment or
Multicurrency Revolving Sub-Commitment hereunder any Person which is not then a Dollar
- 20 -
Revolving Credit Lender or a Multicurrency Revolving Credit Lender, as applicable (each
such Lender or Person, an “Incremental Revolving Credit Lender”; and each such
increase by an Incremental Revolving Credit Lender, an “Incremental Revolving Credit
Commitment”); or
(b) one or more additional tranches of term loans in Dollars hereunder by having an
existing Term Lender or any other Person provide such additional term loan (each such Lender
or Person, an “Incremental Term Lender” and, together with an Incremental Revolving
Credit Lender, each an “Incremental Lender”; each such additional term loan by an
Incremental Term Lender, an “Incremental Term Loan” and the commitment of an
Incremental Term Lender to provide an Incremental Term Loan, an “Incremental Term Loan
Commitment”);
which notice shall specify the name of each proposed Incremental Lender, the amount of such
Incremental Lender’s Incremental Revolving Credit Commitment (and whether such increase is
in respect of the Dollar Revolving Credit Sub-Commitment or the Multicurrency Revolving
Credit Sub-Commitment) or Incremental Term Loan Commitment, as applicable, the date on which
such Commitment shall be effective (the “Incremental Loan Effective Date”) (which
shall be a Business Day at least three Business Days after delivery of such notice and 30
days prior to (x) in respect of an Incremental Revolving Credit Commitment, the Tranche 2
Revolving Credit Commitment Termination Date or (y) in respect of an Incremental Term Loan
Commitment, the Tranche 2 Term Loan Maturity Date); provided that each such
Incremental Lender shall be subject to the prior written consent of the Administrative Agent
(such consent not to be unreasonably withheld) if such consent would be required under
Section 9.04(b) for an assignment of Revolving Credit Commitments or Term Loans, as
applicable, to such Incremental Lender; and provided, further, that:
(i) the aggregate amount of Incremental Revolving Credit Commitments and
Incremental Term Loan Commitments under this Section shall not exceed $200,000,000;
(ii) the minimum amount of any Incremental Revolving Credit Commitment or
Incremental Term Loan Commitment shall be $10,000,000 or a larger multiple of
$1,000,000;
(iii) both at the time of any such request and as of the relevant Incremental
Loan Effective Date, no Default or Event of Default shall have occurred and be
continuing or would result therefrom;
(iv) the representations and warranties of the Borrower set forth in this
Agreement, and of each Loan Party in each of the other Loan Documents to which it is
a party, shall be true and correct in all material respects on and as of the
relevant Incremental Loan Effective Date (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, as of such date);
(v) each Incremental Revolving Credit Commitment shall be a Tranche 2
Revolving Credit Commitment for all purposes of this Agreement having the same terms
applicable to the then existing Tranche 2 Revolving Credit Commitments; and
(vi) (x) except as to interest rates, amortization and final maturity date
(which shall, subject to subclauses (y) and (z) below, be determined by the Borrower
and the Incremental Term Lenders in their sole discretion, with, in the case of the
final maturity date only, the consent of the Administrative Agent (such consent not
to be unreasonably withheld)), the Incremental Term Loans shall have the same terms
as the then existing
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Tranche 2 Term Loans, (y) the final maturity date of any Incremental Term Loan
shall be no earlier that the Tranche 2 Term Loan Maturity Date and (z) the weighted
average life to maturity of any Incremental Term Loan shall be no shorter than the
remaining weighted average life to maturity of the Tranche 2 Term Loans;
provided that if any Incremental Term Loan shall have the same interest
rate, amortization and final maturity date as the existing Tranche 2 Term Loans at
the time such Incremental Term Loan is made, such Incremental Term Loan shall be
treated as a Tranche 2 Term Loan for all purposes of this Agreement.
Each Incremental Revolving Credit Commitment (and the increase of, or the undertaking
of, any Revolving Credit Sub-Commitment of each Incremental Revolving Credit Lender
resulting therefrom) or each Incremental Term Loan Commitment, as the case may be, shall
become effective as of the relevant Incremental Loan Effective Date upon receipt by the
Administrative Agent, on or prior to 11:00 a.m., New York City time, on such Incremental
Loan Effective Date, of (A) a certificate of a duly authorized officer of the Borrower
stating that the conditions with respect to such Incremental Revolving Credit Commitment or
Incremental Term Loan Commitment, as applicable, under this paragraph have been satisfied
and (B) an agreement, in form and substance reasonably satisfactory to the Borrower and the
Administrative Agent, which shall provide for such Incremental Revolving Credit Commitment
and/or Incremental Term Loan Commitment of each Incremental Lender and the other relevant
terms relating thereto, duly executed by each Incremental Lender and the Borrower and
acknowledged by the Administrative Agent, and customary legal opinions or other documents
reasonably requested by the Administrative Agent in connection therewith.
With respect to any Incremental Revolving Credit Commitment or Incremental Term Loan
Commitment, upon the Administrative Agent’s receipt of each such agreement executed by such
parties, together with the other documentation contemplated above, and subject to the
foregoing terms and conditions, on the relevant Loan Effective Date each Incremental Lender
shall become a Lender hereunder with an Incremental Revolving Credit Commitment or
Incremental Term Loan Commitment, as applicable, and the Administrative Agent shall record
the information contained in such agreement in the Register and give prompt notice thereof
to the Borrower and the Lenders.
On the Incremental Loan Effective Date for an Incremental Revolving Credit Commitment,
(i) in the event Syndicated Revolving Credit Loans are then outstanding under the Revolving
Credit Sub-Commitment of any Tranche that is being increased, (x) each relevant Incremental
Revolving Credit Lender shall make available to the Administrative Agent such amounts in
immediately available funds as the Administrative Agent shall determine, for the benefit of
the other relevant Revolving Credit Lenders under such Revolving Credit Sub-Commitment of
such Tranche, as being required in order to cause, after giving effect to such increase and
the application of such amounts to make payments to such other Revolving Credit Lenders, the
Syndicated Revolving Credit Loans to be held ratably by all Revolving Credit Lenders under
such Revolving Credit Sub-Commitment of such Tranche in accordance with their respective
Revolving Credit Sub-Commitments of such Tranche, (y) the Borrower shall be deemed to have
prepaid and reborrowed all outstanding Syndicated Revolving Credit Loans under such
Revolving Credit Sub-Commitment of such Tranche as of such Incremental Loan Effective Date
(with such borrowing to consist of the Type of Revolving Credit Loans, with related Interest
Periods if applicable, specified in a notice delivered by the Borrower in accordance with
the requirements of Section 2.03) and (z) the Borrower shall pay to the Revolving Credit
Lenders under such Revolving Credit Sub-Commitment of such Tranche the amounts, if any,
payable under Section 2.14 as a result of such prepayment; and (ii) the
- 22 -
participations hereunder in Swingline Loans and/or Letters of Credit then outstanding
held by the Revolving Credit Lenders shall be adjusted accordingly to reflect the addition
of such Incremental Revolving Credit Commitment.
On the Incremental Loan Effective Date (or such other date provided above for in the
relevant agreement referred to above) for an Incremental Term Loan Commitment, each relevant
Incremental Term Lender shall make an Incremental Term Loan to the Borrower in the amount of
such Incremental Term Loan Commitment pursuant to this Section and otherwise in accordance
with this Agreement; provided that, if such Incremental Term Loan shall be treated
as a Tranche 2 Term Loan pursuant to clause (vi) above, such Incremental Term Loan shall
consist proportionately of the same Type of Term Loans as the then outstanding Tranche 2
Term Loans and, in the case of Eurocurrency Term Loans, having an Interest Period or
Interest Periods ending on the last day(s) of the Interest Period(s) for such outstanding
Tranche 2 Term Loans.
Notwithstanding anything herein to the contrary, in no event shall any Lender be
obligated to increase its Commitment hereunder.”
2.16. Use of Loan Proceeds and Letters of Credit. Section 5.08 of the Credit
Agreement shall be amended and restated in its entirety to read as follows:
“SECTION 5.08. Use of Loan Proceeds and Letters of Credit. The proceeds of
the Revolving Credit Loans, any New Tranche 2 Term Loans made on the Amendment No. 3
Effective Date and any Incremental Loans will be used for general corporate purposes of the
Borrower and its Subsidiaries, including, in the case of Borrowings as of the Amendment No.
3 Effective Date, to pay fees, expenses and other amounts owing by the Borrower in respect
of Amendment No. 3 and the transactions contemplated thereby occurring as of the Amendment
No. 3 Effective Date. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the regulations of the Board,
including Regulations U and X. The Letters of Credit will be used in the ordinary course of
business of the Borrower and its Subsidiaries.”
2.17. Indebtedness. Section 6.01 of the Credit Agreement shall be amended as
follows:
A. Section 6.01(i) shall be amended and restated in its entirety to read as follows:
“(i) Indebtedness in respect of a convertible notes offering by the Borrower
(including the convertible notes issued as of the Amendment No. 3 Effective Date, as
contemplated by Section 4.02(b) of Amendment No. 3); provided that (i) such
Indebtedness does not provide for any scheduled repayment, mandatory redemption or sinking
fund obligation prior to one year after the Tranche 2 Term Loan Maturity Date and (ii) such
Indebtedness is (x) unsecured and (y) subordinated in right of payment to the Obligations on
terms substantially similar to the subordination terms contained in the convertible notes
issued as of the Amendment No. 3 Effective Date; provided, however, that (I)
any conversion of such Indebtedness by a holder thereof into shares of Equity Interests,
cash or a combination of cash and shares of Equity Interests, (II) the rights of holders of
such Indebtedness to convert into shares of Equity Interests, cash or a combination of cash
and shares of Equity Interests and (III) the rights of holders of such Indebtedness to
require any repurchase by the Borrower upon a fundamental change of such Indebtedness in
cash, shall not constitute a scheduled repayment, mandatory redemption or sinking fund
obligation;”.
B. Section 6.01(j) shall be amended and restated in its entirety to read as follows:
- 23 -
“(j) other Indebtedness in an aggregate principal amount not to exceed 25% of
Consolidated Net Worth; provided that, if at any time on or after the Amendment No.
3 Effective Date either (i) all of the outstanding Senior Notes have been paid or prepaid in
full or (ii) all of the outstanding Senior Notes (and the related Senior Note Purchase
Agreements) shall have been amended to provide that the basket thereunder corresponding to
this clause (j) shall be an incurrence-based basket, then, effective upon written notice by
the Borrower to the Administrative Agent of such payment or prepayment or upon receipt by
the Administrative Agent of a signed copy of such amendment(s) reasonably acceptable to the
Administrative Agent, as applicable, this clause (j) shall automatically be deemed amended
to permit other Indebtedness if, at the time of the creation, incurrence or assumption of
such Indebtedness, the principal amount of such Indebtedness, together with the then
aggregate outstanding principal amount of other Indebtedness theretofore created, incurred,
assumed under this clause (j), would not exceed 25% of Consolidated Net Worth as of the end
of the then most recent fiscal quarter for which financial statements are available; and”.
C. A new Section 6.01(k) shall be inserted at the end of Section 6.01, immediately after
clause (j) thereof, to read as follows:
“(k) unsecured, senior subordinated or subordinated notes of the Borrower (and any
unsecured, subordinated Guarantees thereof by the Guarantors) in an aggregate principal
amount not to exceed $200,000,000 at any time outstanding.”
2.18. Acquisitions. Section 6.05(h) of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
“(h) any Acquisition after the date hereof by the Borrower or any Subsidiary;
provided that (i) in the case of any such Acquisition, (x) if the Acquired Entity is
a publicly held corporation, such Acquisition shall have been approved by the board of
directors of such Acquired Entity; (y) after giving effect to any such Acquisition of Equity
Interests, the Acquired Entity becomes a direct or indirect Subsidiary of the Borrower; and
(z) the Acquired Entity is engaged in a line of business in accordance with the requirements
of Section 6.10; (ii) both immediately prior to such Acquisition and after giving effect
thereto, no Default shall have occurred and be continuing; and (iii) if, after giving effect
to such Acquisition on a pro forma basis as if such Acquisition had occurred on the first
day of the most recent period of four consecutive fiscal quarters of the Borrower, the
Consolidated Leverage Ratio shall be greater than 3.50 to 1.00, the aggregate consideration
(including assumed Indebtedness, but excluding consideration in the form of the Equity
Interests of the Borrower) for all such Acquisitions shall not exceed $150,000,000 in any
fiscal year; provided that, if any time on or after the Amendment No. 3 Effective
Date either (A) all of the outstanding Senior Notes have been paid or prepaid in full or (B)
all of the outstanding Senior Notes (and the related Senior Note Purchase Agreements) shall
have been amended to increase the maximum permitted leverage ratio applicable under the
covenant contained in such Senior Notes corresponding to this subclause (iii) to a level
above 3.50 to 1.00, then, effective upon written notice by the Borrower to the
Administrative Agent of such payment or prepayment or upon receipt by the Administrative
Agent of a signed copy of such amendment(s) reasonably acceptable to the Administrative
Agent, as applicable, the ratio set forth above in this subclause (iii) shall automatically
be deemed amended to be (x) in the case of subclause (A) above, 3.75 to 1.0 or (y) in the
case of subclause (B) above, the same level as such ratio in such Senior Notes as so amended
(but in no event greater than 3.75 to 1.0).
- 24 -
2.19. Restrictive Payments. Section 6.06 of the Credit Agreement shall be amended by
inserting at the end of clause (b)(ii) thereof, immediately after the semi-colon, the following
words:
“provided that that this clause (b)(ii) shall not apply to any Restricted Payment
made in connection with any hedge transactions, warrant transactions and capped call
transactions in respect of Convertible Notes;”.
2.20. Restrictive Agreements. Section 6.08 of the Credit Agreement shall be amended
as follows:
A. The word “and” shall be deleted at the end of clause (v) of Section 6.08 and the period at
the end of clause (vi) thereof shall be replaced with “; and”.
B. A new clause (vii) shall be inserted in Section 6.08, immediately after clause (vi)
thereof, to read as follows:
“(vii) restrictions or conditions imposed by any agreement relating to Indebtedness
permitted by Section 6.01, if such restrictions or conditions are customary for such
Indebtedness.”
2.21. Financial Covenants. Section 6.09 of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
“SECTION 6.09. Certain Financial Covenants.
(a) Leverage Ratio. The Borrower will not permit the Consolidated Leverage
Ratio, as at the last day of any period of four consecutive fiscal quarters of the Borrower,
to exceed 3.50 to 1.0; provided that, if any time on or after the Amendment No. 3
Effective Date either (i) all of the outstanding Senior Notes have been paid or prepaid in
full or (ii) all of the outstanding Senior Notes (and the related Senior Note Purchase
Agreements) shall have been amended to increase the maximum permitted leverage ratio
applicable under the covenant contained in such Senior Notes corresponding to this clause
(a) to a level above 3.50 to 1.00, then, effective upon written notice by the Borrower to
the Administrative Agent of such payment or prepayment or upon receipt by the Administrative
Agent of a signed copy of such amendment(s) reasonably acceptable to the Administrative
Agent, as applicable, the ratio set forth above in this clause (a) shall automatically be
deemed amended to be (A) in the case of subclause (i) above, 4.00 to 1.0 or (B) in the case
of subclause (ii) above, the same level as such ratio in such Senior Notes as so amended
(but in no event greater than 4.00 to 1.0).
(b) Interest Coverage Ratio. The Borrower will not permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters of the Borrower
to be less than 3.50 to 1.0.”
- 25 -
2.22. Swap Agreements. Section 6.11 of the Credit Agreement shall be amended by
inserting at the end thereof, immediately prior to the period, the following words:
“(including, among other Swap Agreements, hedge transactions, warrant transactions and
capped call transactions in respect of Convertible Notes)”.
2.23. Events of Default. Article VII of the Credit Agreement shall be amended by
inserting at the end of clause (g) thereof, immediately prior to the semi-colon, the following
words:
“; provided, further, that, in connection with any Convertible Notes, (i)
any conversion of such Indebtedness by a holder thereof into shares of Equity Interests,
cash or a combination of cash and shares of Equity Interests, (ii) the rights of holders of
such Indebtedness to convert into shares of Equity Interests, cash or a combination of cash
and shares of Equity Interests, (iii) the rights of holders of such Indebtedness to require
any repurchase by the Borrower upon a fundamental change of such Indebtedness in cash and
(iv) the termination of any of Swap Agreements entered into in connection with a convertible
note offering, shall not constitute an Event of Default under this clause (g) or clause (f)
above”.
2.24. Assignments. Section 9.04(b) of the Credit Agreement shall be amended by
deleting, in clause (i)(B)(ii) thereof, the words “Term Loan Commitments and”.
2.25. Schedules. Schedule 2.01 of the Credit Agreement shall be amended and replaced
in its entirety by Schedule 2.01 attached to this Amendment.
Section 3. Representations and Warranties. The Borrower represents and warrants to
the Administrative Agent and the Lenders that, as of each of the Convertible Notes Amendments
Effective Date (with respect to clauses (a) and (b) below only) and the Amendment No. 3 Effective
Date, (a) the representations and warranties of the Borrower set forth in the Credit Agreement as
amended hereby, and of each Loan Party in each of the other Loan Documents to which it is a party,
are true and correct in all material respects on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a specific date, as of such
specific date); (b) no Default shall have occurred and be continuing under the Credit Agreement as
amended hereby; (c) the value of the guarantees of the Released Subsidiaries, taken as a whole,
that are being released pursuant to Section 6 of this Amendment is not all or substantially all of
the value of the guarantees of the Guarantors under Article X of the Credit Agreement; and (d) the
value of the collateral of the Released Subsidiaries, taken as a whole, that is being released and
terminated pursuant to Section 6 of this Amendment is not all or substantially all of the
collateral under the Security Documents.
Section 4. Conditions to Effectiveness of Amendments.
4.01. Conditions to Certain Amendments. The amendments set forth in Sections 2.01,
2.02 (but only with respect to the addition of the definition of “Convertible Notes” contained
therein), 2.17A, 2.19, 2.20, 2.22 and 2.23 of this Amendment (collectively, the “Convertible
Notes Amendments”) shall become effective on the date on which the Administrative Agent shall
have received each of the following, each of which shall be reasonably satisfactory in form and
substance to the Administrative Agent (or such condition shall have been waived by the Required
Lenders) (such date, the “Convertible Notes Amendments Effective Date”):
(a) Executed Counterparts. Counterparts of this Amendment signed on behalf of
each of the Borrower, each Guarantor, the Required Lenders under (and as defined in) the
Credit Agreement, the Administrative Agent and the Syndication Agent; provided that
the parties hereto
- 26 -
hereby agree that each Lender which executes and delivers an Amendment No. 3 Lender
Addendum substantially in the form attached hereto shall be deemed to have executed a
counterpart of this Amendment (it being understood that such Required Lenders hereby
consent, and authorize and direct the Administrative Agent and the Syndication Agent to
consent, and pursuant to Section 6.12 of the Credit Agreement the Administrative Agent and
the Syndication Agent hereby consent, to the amendments to the Senior Notes, which are in
substantially the same form as the amendments furnished to the Lenders prior to the
Convertible Notes Amendments Effective Date); and
(b) Amendments to Senior Notes. Evidence that the Senior Notes shall have
been amended to effect changes consistent with the Convertible Notes Amendments, among other
changes, and such amendments shall have become effective prior to or simultaneously with the
Convertible Notes Amendments Effective Date.
4.02 Conditions to Amendment No. 3 Effective Date. The amendments set forth in
Section 2 hereof (other than the Convertible Notes Amendments) shall not become effective until the
date (which shall be no later than September 30, 2010) on which the Administrative Agent shall have
received each of the following, each of which shall be reasonably satisfactory in form and
substance to the Administrative Agent (or such condition shall have been waived by the Required
Lenders):
(a) Executed Counterparts. Counterparts of this Amendment signed on behalf
of, in addition to the parties referred to in Section 4.01(a) hereof, the Administrative
Agent, the Issuing Lenders, the Swingline Lender, each Tranche 2 Revolving Credit Lender
(including each New Tranche 2 Revolving Credit Lender) and each Tranche 2 Term Lender
(including each New Tranche 2 Term Lender); provided that the parties hereto hereby
agree that each Tranche 2 Revolving Credit Lender (including each New Tranche 2 Revolving
Credit Lender) and each Tranche 2 Term Lender (including each New Tranche 2 Term Lender)
which executes and delivers an Amendment No. 3 Lender Addendum substantially in the form
attached hereto shall be deemed to have executed and delivered a counterpart of this
Amendment (and, in the case of each New Tranche 2 Revolving Credit Lender and each New
Tranche 2 Term Lender, as of the Amendment No. 3 Effective Date, such Lender shall become a
Lender party to the Credit Agreement as amended hereby with its respective New Tranche 2
Revolving Credit Commitment or New Tranche 2 Term Loan Commitment, as applicable);
provided, further, that the aggregate amount of the Tranche 2 Revolving
Credit Commitments (including New Tranche 2 Revolving Credit Commitments) as of the
Amendment No. 3 Effective Date shall not exceed $400,000,000.
(b) Convertible Notes. Evidence that the Borrower shall have received the
gross proceeds from the issuance of Convertible Notes of not less than $325,000,000.
(c) Outstanding Credit Exposure; Repayment of Term Loans. Evidence that, as
of the Amendment No. 3 Effective Date, (i) all unpaid accrued interest on outstanding Loans
shall have been paid in full; (ii) all unpaid commitment fees in respect of the Revolving
Credit Commitments in effect immediately prior to the Amendment No. 3 Effective Date and all
letter of credit fees, accrued to but not including the Amendment No. 3 Effective Date,
shall have been paid in full; and (iii) the Borrower shall have prepaid the Term Loans
outstanding under the Credit Agreement immediately prior to the Amendment No. 3 Effective
Date (the “Existing Term Loans”) (for avoidance of doubt, exclusive of any New
Tranche 2 Term Loans made as of the Amendment No. 3 Effective Date pursuant to the second
sentence of Section 2.01(b) of the Credit Agreement as amended hereby), together with
(without duplication) interest thereon, such that, after giving effect to such prepayment,
the portion of the Term Loans consisting of Existing Term Loans outstanding as of the
Amendment No. 3 Effective Date shall not exceed $400,000,000 in
- 27 -
aggregate principal amount (provided that the Required Lenders hereby waive any
payment of breakage funding amounts that may be payable under Section 2.16 of the Credit
Agreement in connection with such prepayment).
(d) Opinion of Counsel to the Loan Parties. A favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the Amendment No. 3
Effective Date) of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties, in form and
substance satisfactory to the Administrative Agent and covering such other matters relating
to the Loan Parties, this Amendment or the transactions contemplated hereby as the
Administrative Agent shall reasonably request (and the Borrower hereby instructs such
counsel to deliver such opinion to the Lenders and the Agents).
(e) Other Documents. Such documents and certificates as the Administrative
Agent or its counsel may reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the transactions contemplated by this
Amendment and any other legal matters relating to the Loan Parties (other than the Released
Subsidiaries) or the transactions contemplated by this Amendment, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.
(f) Fees and Expenses. Evidence that (i) the Administrative Agent shall have
received payment from the Borrower, for the account of each Tranche 2 Revolving Credit
Lender and each Tranche 2 Term Lender, an upfront fee in an amount equal to 0.40% of (x) in
the case of each Tranche 2 Revolving Credit Lender, the amount of such Lender’s Tranche 2
Revolving Credit Commitment (including, without duplication, any New Tranche 2 Revolving
Credit Commitment) in effect on the Amendment No. 3 Effective Date and (y) in the case of
each Tranche 2 Term Lender, the amount of such Lender’s (A) Tranche 2 Term Loans outstanding
as the Amendment No. 3 Effective Date (which, for avoidance of doubt, with respect to any
Term Lender under the Credit Agreement as in effect immediately prior to the Amendment No. 3
Effective Date shall not include any portion of the Existing Term Loans of such Term Lender
prepaid in accordance with Section 4.02(c) hereof) and/or (B) (without duplication) New
Tranche 2 Term Loan Credit Commitment in effect on the Amendment No. 3 Effective Date; (ii)
the Administrative Agent shall have received payment from the Borrower, for the account of
the relevant Person(s), all amounts due and payable to the Administrative Agent on or prior
to the Amendment No. 3 Effective Date pursuant to the Credit Agreement and the Loan
Documents including, to the extent invoiced, reimbursement of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel) required to be reimbursed
or paid by the Borrower thereunder; and (iii) (without duplication) the Administrative Agent
and each of X.X. Xxxxxx Securities Inc. and Banc of America Securities LLC, as the Lead
Arrangers in respect of this Amendment, and their respective Affiliates shall have received
payment from the Borrower all fees, out-of-pocket expenses and other amounts separately
agreed to be paid or reimbursed by the Borrower in connection with this Amendment.
(g) Convertible Notes Amendments Effective Date. The Convertible Notes
Amendments Effective Date shall have occurred.
Section 5. Confirmation of Loan Documents. As of each of the Convertible Notes
Amendments Effective Date and the Amendment No. 3 Effective Date, the Borrower hereby confirms and
ratifies all of its obligations under the Loan Documents (in each case, as amended hereby as of
such date) to which it is a party. Except as otherwise provided in Section 6 hereof, by its
execution on the respective signature lines provided below, as of each of the Convertible Notes
Amendments Effective Date and the Amendment No. 3 Effective Date, each of the Guarantors (but
excluding, as of the Amendment No. 3
- 28 -
Effective Date, the Released Subsidiaries) hereby confirms and ratifies all of its obligations
(including, without limitation, the obligations as guarantor under Article X of the Credit
Agreement, as amended hereby as of such date) and the Liens granted by it under the Loan Documents
(in each case, as amended hereby as of such date) to which it is a party, represents and warrants
that the representations and warranties set forth in such Loan Documents are complete and correct
in all material respects on the date hereof as if made on and as of such date and confirms that all
references in such Loan Documents to the “Credit Agreement” (or words of similar import) refer to
the Credit Agreement as amended hereby as of such date without impairing any such obligations or
Liens in any respect.
Section 6. Releases of Certain Guarantees and Pledges of Equity Interests. The
Lenders party to this Amendment hereby agree that, effective upon the Amendment No. 3 Effective
Date (and notwithstanding that the Released Subsidiaries shall have executed this Amendment in
connection with the Convertible Notes Amendments Effective Date), (a) each Released Subsidiary
shall be irrevocably released from any and all of its obligations under the Credit Agreement, the
Security Documents and any other Loan Documents theretofore executed by such Released Subsidiary in
connection with the Credit Agreement, which obligations shall be deemed to be terminated, and (b)
all Liens granted to the Collateral Agent for the benefit of the Secured Parties by each Released
Subsidiary in any or all of its assets and properties shall be unconditionally and irrevocably
terminated and released, in each case without any recourse or warranty or representation
whatsoever. From and after the Amendment No. 3 Effective Date, each Released Subsidiary shall
cease to be party to the Credit Agreement and the other Loan Documents to which such Released
Subsidiary was originally a party and each Released Subsidiary shall have no further rights or
obligations thereunder (except to the extent any such obligations are expressly stated to survive
such release and termination). The Lenders authorize and direct the Collateral Agent to, and the
Collateral Agent shall, as promptly as practicable, in each case, at the expense of the Borrower,
(i) deliver to the Borrower all Collateral relating to or given by each Released Subsidiary in the
possession or control of the Collateral Agent, including, without limitation, all original stock
certificates, membership interests certificates and corresponding stock powers or other instruments
of transfer and instruments constituting, evidencing or relating to such Collateral and (ii) upon
the reasonable request of any Released Subsidiary or the Borrower, execute or authenticate and
deliver such additional lien releases, documents or instruments as may be necessary to evidence the
release, without any recourse or warranty or representation whatsoever, of any and all liens,
pledges, security interests and other encumbrances granted by such Released Subsidiary, in favor of
the Collateral Agent, including without limitation, as applicable, such UCC-3 termination
statements and other documents, as applicable.
The Lenders party to this Amendment hereby acknowledge and agree as of the Amendment No. 3
Effective Date that if at any time thereafter the Borrower or any of its Subsidiaries shall
transfer the Equity Interests of a First-Tier Foreign Subsidiary that have been pledged pursuant to
the Security Documents to another Foreign Subsidiary in accordance with the Credit Agreement, then,
effective as of such transfer, such pledged Equity Interests shall constitute Excluded Equity
Interests for purposes of the Credit Agreement and the relevant Security Documents and the Liens on
such pledged Equity Interests shall be irrevocably released and terminated. The Lenders authorize
and direct the Collateral Agent to, and the Collateral Agent shall, as promptly as practicable, in
each case, at the expense of the Borrower, deliver to the Borrower, as promptly as practicable
following written notice to the Collateral Agent of such transfer, all original stock certificates,
membership interests certificates and corresponding stock powers or other instruments of transfer
and instruments constituting, evidencing or relating to such pledged Equity Interests in the
possession of the Collateral Agent and, upon the reasonable request of the Borrower, execute or
authenticate and deliver such releases, documents or instruments as may be necessary to evidence
such release and termination, without any recourse or warranty or representation whatsoever.
- 29 -
Section 7. Miscellaneous. Except as herein provided, the Credit Agreement shall
remain unchanged and in full force and effect. The Borrower shall pay all reasonable expenses
incurred by the Administrative Agent, including the reasonable fees, charges and disbursements of
Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to JPMCB, in connection with the
preparation, negotiation, execution and delivery of, and satisfaction of the conditions under, this
Amendment. This Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same agreement and any of the parties hereto may execute this
Amendment by signing any such counterpart. This Amendment shall be governed by, and construed in
accordance with, the law of the State of New York.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to be duly executed
and delivered as of the day and year first above written.
| TELEFLEX INCORPORATED |
||||
| By: | \s\ C. Xxxxxxx Xxxxxx | |||
| Name: | C. Xxxxxxx Xxxxxx | |||
| Title: | Treasurer | |||
| GUARANTORS ARROW INTERNATIONAL, INC. |
||||
| By: | \s\ C. Xxxxxxx Xxxxxx | |||
| Name: | C. Xxxxxxx Xxxxxx | |||
| Title: | (1) Vice President and Treasurer (other than | |||
| for Technology Holding Company, TFX Equities
Incorporated, TFX International Corporation and TFX
North America Inc.) (2) President and Treasurer (in the case of TFX North America Inc.) (3) Vice President (in the case of TFX Equities Incorporated) (4) President (in the case of Technology Holding Company and TFX International Corporation) |
||||
| ADMINISTRATIVE AGENT JPMORGAN CHASE BANK, N.A., as Administrative Agent |
||||
| By: | \s\ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| SYNDICATION AGENT BANK OF AMERICA, N.A., as Syndication Agent |
||||
| By: | \s\ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
| ISSUING LENDERS JPMORGAN CHASE BANK, N.A., as Issuing Lender |
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| By: | \s\ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| XXXXX FARGO BANK, N.A., SUCCESSOR IN INTEREST BY MERGER TO WACHOVIA BANK, N. A., as Issuing Lender |
||||
| By: | \s\ Xxxxx Trauagline | |||
| Name: | Xxxxx Trauagline | |||
| Title: | Director | |||
| SWINGLINE LENDER JPMORGAN CHASE BANK, N.A., as Swingline Lender |
||||
| By: | \s\ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
EXHIBIT A
[Form of Amendment No. 3 Lender Addendum]
AMENDMENT NO. 3 LENDER ADDENDUM
Reference is made to (i) the Credit Agreement dated as of October 1, 2007 (as amended or
otherwise modified, the “Credit Agreement”) between Teleflex Incorporated (the
“Borrower”), the Lenders party thereto (individually, a “Lender” and, collectively,
the “Lenders”), the Guarantors party thereto, JPMorgan Chase Bank, N.A. (“JPMCB”),
as administrative agent (in such capacity, the “Administrative Agent”), JPMCB, as
collateral agent, and Bank of America, N.A., as syndication agent and (ii) Amendment No. 3 dated as
of August 2, 2010 to the Credit Agreement (“Amendment No. 3”). Capitalized terms used and
not otherwise defined herein shall have the meaning assigned thereto in the Credit Agreement, as
amended by Amendment No. 3.
This is an Amendment No. 3 Lender Addendum (this “Addendum”) referred to in Amendment
No. 3, pursuant to the terms of which, upon execution and delivery of this Addendum by the
undersigned lender (the “Lender Signatory”), the Lender Signatory shall be deemed to have
executed and delivered a counterpart of Amendment No. 3 (and such execution and delivery shall be
irrevocable upon the Convertible Notes Amendment Effective Date).
By execution and delivery of this Addendum, the Lender Signatory hereby agrees as follows:
[PLEASE CHECK THE APPROPRIATE BOX OR BOXES UNDER PARTS (I) AND (II) BELOW THAT APPLY TO THE
LENDER SIGNATORY]
I. EXISTING LENDERS PARTY TO THE CREDIT AGREEMENT
o FOR EXISTING REVOLVING CREDIT LENDERS: The Lender Signatory, which is a Revolving
Credit Lender under the Credit Agreement, hereby (a) consents to the terms of Amendment No. 3 and
(b) agrees that, effective as of the Amendment No. 3 Effective Date, (i) it shall be a Tranche 2
Revolving Credit Lender for purposes of the Credit Agreement as amended by Amendment No. 3, (ii)
the entire amount of its Revolving Credit Commitment under the Credit Agreement in effect
immediately prior to the Amendment No. 3 Effective Date shall be extended pursuant to Amendment No.
3 and shall be a Tranche 2 Revolving Credit Commitment under the Credit Agreement as so amended and
(iii) the amount of its Tranche 2 Revolving Credit Commitment is as set forth in Schedule 2.01
attached to Amendment No. 3.
o FOR EXISTING TERM LENDERS: The Lender Signatory, which is a Term Lender under the
Credit Agreement, hereby (a) consents to the terms of Amendment No. 3 and (b) agrees that,
effective as of the Amendment No. 3 Effective Date, (i) it shall be a Tranche 2 Term Lender for
purposes of the Credit Agreement as amended by Amendment No. 3, (ii) the entire amount of its
outstanding Term Loan under the Credit Agreement in effect immediately prior to the Amendment No. 3
Effective Date shall be extended pursuant to Amendment No. 3 and shall be a Tranche 2 Term Loan
under the Credit Agreement as so amended and (iii) the amount of its Tranche 2 Term Loan is as set
forth in Schedule 2.01 attached to Amendment No. 3.
II. NEW TRANCHE 2 LENDERS
[NOTE: BOX BELOW TO BE CHECKED IF LENDER SIGNATORY (WHETHER AN EXISTING LENDER OR A NEW
LENDER) IS PROVIDING A NEW TRANCHE 2 COMMITMENT]
o The Lender Signatory hereby agrees that, effective as of the Amendment No. 3 Effective
Date, (i) it will provide a New Tranche 2 Revolving Credit Commitment and/or a New Tranche 2 Term
Loan Commitment, as applicable, under the Credit Agreement as amended by Amendment No. 3 in the
amount set forth in Schedule 2.01 attached to Amendment No. 3 (it being understood that allocation
of its new Commitment (but in no event exceeding the total amount of the new commitment committed
by the Lender Signatory in its commitment advice delivered to the Administrative Agent on or prior
to the date hereof on the terms set forth therein) between or to the New Tranche 2 Revolving Credit
Commitments and/or New Tranche 2 Term Loan Commitments under the Credit Agreement as so amended and
the final amount of such allocation(s) will be determined by, and at the discretion of, X.X. Xxxxxx
Securities, Inc, and Bank of America Securities LLC, as Lead Arrangers in respect of Amendment No.
3, in consultation with the Borrower, and listed on such Schedule 2.01) and (ii) (if such Lender
Signatory is not currently a party to the Credit Agreement) it shall become a New Tranche 2
Revolving Credit Lender and/or a New Tranche 2 Term Lender, as applicable, party to the Credit
Agreement as so amended; provided that the Lender Signatory agrees that, upon request of
the Borrower, it will effect such New Tranche 2 Revolving Credit Commitment and/or New Tranche 2
Term Loan Commitment by entering into one or more assignment agreements with one or more existing
Lenders as of the Amendment No. 3 Effective Date. The Lender Signatory (if not a party to the
Credit Agreement in effect immediately prior to the Amendment No. 3 Effective Date) agrees to
deliver to the Administrative Agent an Administrative Questionnaire on or prior to the Amendment
No. 3 Effective Date.
This Addendum shall be construed in accordance with and governed by the law of the State of
New York. This Addendum may be executed by one or more of the parties hereto on any number of
separate counterparts, and all of such counterparts shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page hereof by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
[remainder of page intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly executed and
delivered by their proper and duly authorized officers as of the date of Amendment No. 3.
| Dated as of August 2, 2010 | NAME OF LENDER: |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted and agreed:
TELEFLEX INCORPORATED
| By: | ||||
| Name: | ||||
| Title: | ||||
| JPMORGAN CHASE BANK, N.A., as Administrative Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Schedule 1
Released Subsidiaries
1. Sierra International Inc.
2. Telair International Incorporated
3. TFX Marine Incorporated
