EX-10.1 9 d332313dex101.htm AMENDMENT NO 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT EXECUTION VERSION AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment No. 1”), dated as of January 27, 2017, by and among ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, successor by merger to Wachovia Bank, National Association, a national banking association (“Lender”), ▇▇▇▇▇▇▇ GROUP LLC, a Delaware limited liability company, as successor to ▇▇▇▇▇▇▇ Group Inc., as revolving loan borrower (the “Revolving Borrower”), and 100 MAPLE LLC, a Delaware limited liability company (the “Term Loan Borrower” and, together with the Revolving Borrower, the “Borrowers”).
WHEREAS, the Borrowers and the Lender have entered into financing arrangements pursuant to which Lender has made and may make loans and advances and provide other financial accommodations to Borrowers as set forth in the Third Amended and Restated Credit Agreement, dated as of January 14, 2015, by and among Lender, as administrative agent and lender, and the Borrowers (as amended, modified or otherwise supplemented to the date hereof and as the same may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the “Creidt Agreement”), and the other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto, including, but not limited to, this Amendment No. 1 (all of the foregoing, together with the Credit Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the “Financing Agreements”);
WHEREAS, the Borrowers have requested that Lender make certain amendments to the Loan Agreement as set forth herein, which Lender is willing to do subject to the terms and provisions hereof; and
WHEREAS, by this Amendment No. 1, Lender and the Borrowers wish and intend to evidence such amendments.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1.01 Definitions. Capitalized terms used herein shall have the meanings assigned thereto in the Credit Agreement, unless otherwise defined herein.
Section 1.02 Amendments to the Credit Agreement. The Credit Agreement is hereby amended as follows:
(a) The definition of “2021 Note Equivalent Indebtedness” is hereby amended and restated in its entirety as follows:
“2025 Note Equivalent Indebtedness” means any guarantee made by any Borrower or any of their respective Subsidiaries of Indebtedness of the Parent (other than the 2025 Notes or the Additional Permitted 2025 Notes and the 2025 Notes Indenture) after the date hereof, (i) issued in lieu of Parent issuing any Additional Permitted 2025 Notes or (ii) issued to refinance or in partial repayment of the 2025 Notes or any of the Additional Permitted 2025 Notes, as otherwise permitted hereunder; provided, that:
(a) the sum of (i) the aggregate outstanding principal amount (or any other Indebtedness in connection with the relevant transactions, if applicable) of all 2025 Note Equivalent Indebtedness, and (ii) the aggregate outstanding principal amount (or any other Indebtedness in connection with the relevant transactions, if applicable) of all Indebtedness outstanding under the Additional Permitted 2025 Notes does not cause Parent to breach the “Secured Leverage Ratio” covenant set forth in the 2025 Notes Indenture as in effect on January 27, 2017 (whether or not such 2025 Notes Indenture is in full force and effect at the time of the incurrence of the 2025 Equivalent Indebtedness) or any other covenant set forth in the 2025 Notes Indenture, if such 2025 Notes Indenture is still in effect,
(b) any such 2025 Note Equivalent Indebtedness shall not have a scheduled final maturity date earlier than the later of (i) the maturity date of the 2025 Notes or (ii) one hundred eighty (180) days after the Maturity Date,
(c) the Weighted Average Life to Maturity of any such 2025 Note Equivalent Indebtedness shall not be shorter than the Weighted Average Life to Maturity of the Term Loan under the Agreement,
(d) such 2025 Equivalent Debt shall not be secured by any property or assets of the Borrower or their Subsidiaries other than the Collateral securing the 2025 Notes,
(e) as of the date of incurring or issuing any of such 2025 Note Equivalent Indebtedness and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing,
(f) any mandatory payments shall be on terms substantially similar to, or (taken as a whole) no more favorable to the holder of such Indebtedness than (as reasonably determined by the Borrowers) those in respect of the 2025 Notes except as Agent may otherwise agree, and
(g) to the extent secured, such 2025 Note Equivalent Indebtedness shall be subject to the 2025 Notes Intercreditor Agreement or such other intercreditor agreement as is reasonably satisfactory to Agent.
(b) The definition of “2021 Notes” is hereby amended and restated in its entirety as follows:
“2025 Notes” shall mean, collectively, (a) the 6.125% Senior Secured Notes due 2025, in the original principal amount of $850,000,000, and (b) any Additional Permitted 2025 Notes, issued by Parent pursuant to the 2025 Notes Indenture, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated, refinanced or replaced (to the extent not prohibited by this Agreement and the 2025 Notes Intercreditor Agreement).
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(c) The definition of “2021 Notes Indenture” is hereby amended and restated in its entirety as follows:
“2025 Notes Indenture” shall mean the Indenture dated as of January 27, 2017, by and among Parent, the subsidiary guarantors party thereto and 2025 Notes Trustee, as trustee, with respect to the 2025 Notes, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated, refinanced or replaced (to the extent not prohibited by this Agreement and the 2025 Notes Intercreditor Agreement).
(d) The definition of “2021 Notes Intercreditor Agreement” is hereby amended and restated as follows:
“2025 Notes Intercreditor Agreement” shall mean the Amended and Restated Intercreditor and Lien Subordination Agreement, dated as of January 27, 2017 executed by and among Agent, the 2025 Notes Trustee, Revolving Loan Borrower and Term Loan Borrower, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
(e) The definition of “2021 Notes Trustee” is hereby amended and restated as follows:
“2025 Notes Trustee” shall mean U.S. Bank National Association, in its capacity as trustee under the 2025 Notes Indenture, and any successor, replacement or additional trustee under the 2025 Notes Indenture, and their respective successors and assigns.
(f) The definition of “Additional Permitted 2021 Notes” is hereby amended and restated as follows:
“Additional Permitted 2025 Notes” shall mean any and all notes issued under the 2025 Notes Indenture to the extent that the issuance of such notes does not cause Parent to breach the “Secured Leverage Ratio” covenant relating to the incurrence of indebtedness and described in the 2025 Notes Indenture as in effect on January 27, 2017.
(g) All references to “2021 Note Equivalent Indebtedness” in the Credit Agreement are hereby replaced with “2025 Note Equivalent Indebtedness.”
(h) All references to “2021 Notes” in the Credit Agreement are hereby replaced with “2025 Notes.”
(i) All references to “2021 Notes Indenture” in the Credit Agreement are hereby replaced with “2025 Notes Indenture.”
(j) All references to “2021 Notes Intercreditor Agreement” in the Credit Agreement are hereby replaced with “2025 Notes Intercreditor Agreement.”
(k) All references to “2021 Notes Trustee” in the Credit Agreement are hereby replaced with “2025 Notes Trustee.”
(l) All references to “Additional 2021 Notes” in the Credit Agreement are hereby replaced with “Additional 2025 Notes.”
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Section 1.03 Representations, Warranties and Covenants. Each Borrower hereby represents, warrants and covenants to Lender the following (which shall survive the execution and delivery of this Amendment No. 1), the truth and accuracy of which are a continuing condition of the making of Loans and providing Letter of Credit Accommodations by Lender to the Borrowers:
(a) This Amendment No. 1 has been duly authorized, executed and delivered by all necessary action on the part of such Borrower, and the agreements and obligations of such Borrower contained herein constitute the legal, valid and binding obligations of such Borrower, enforceable against it in accordance with their terms, except as enforceability is limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting creditor’s rights generally and by general principles of equity;
(b) The execution, delivery and performance of this Amendment No. 1 (i) are all within such Borrower’s corporate or limited liability company powers, as applicable, (ii) are not in contravention of (A) any material law or the terms of such Borrower’s certificate or articles of organization or formation, operating agreement or other organizational documentation, or (B) any indenture, agreement or undertaking to which such Borrower is a party or by which such Borrower or its property is bound, except, in the case of this clause (B), where any such contravention would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect, and (iii) shall not result in the creation or imposition of any Lien upon any of the Collateral, except in favor of Lender pursuant to the Credit Agreement and the Financing Agreements as amended hereby, other than Permitted Liens;
(c) All of the representations and warranties set forth in the Credit Agreement and the other Financing Agreements, each as amended hereby, are true and correct in all material respects on and as of the date hereof, as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date;
(d) After giving effect to this Amendment No. 1, no Default or Event of Default exists as of the date of this Amendment No. 1; and
(e) No action of, or filing with, or consent of any governmental or public body or authority other than the filing of UCC financing statements or other filings relating to the perfection of security interests with the appropriate governmental authorities, and no approval or consent of any other party (other than, in each case, actions, filings or consents that have already been taken, made or obtained) is required to authorize, or is otherwise required in connection with, the execution, delivery and performance of this Amendment No. 1.
Section 1.04 Conditions Precedent. The amendments set forth in Section 2 of this Amendment No. 1 shall not be effective until (a) the Lender has received a copy of this Amendment No. 1, duly authorized and executed by the Borrowers and (b) immediately prior, and immediately after giving effect to the amendments and agreements set forth herein, there shall exist no Event of Default or event or condition which, with the giving of notice, passage of time, or both, would constitute an Event of Default.
Section 1.05 Effect of this Amendment. This Amendment No. 1 constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior oral or written communications, memoranda, proposals, negotiations, discussions, term sheets and commitments with respect to the subject matter hereof. Except as expressly
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amended and waived pursuant hereto, no other changes or modifications or waivers to the Financing Agreements are intended or implied, and in all other respects the Financing Agreements are hereby specifically ratified, restated and confirmed by all parties hereto as of the effective date hereof. To the extent that any provision of the Credit Agreement or any of the other Financing Agreements are inconsistent with the provisions of this Amendment No. 1, the provisions of this Amendment No. 1 shall control.
Section 1.06 Further Assurances. Each Borrower shall execute and deliver such additional documents and take such additional action as may be reasonably requested by Lender to effectuate the provisions and purposes of this Amendment No. 1.
Section 1.07 Governing Law. The rights and obligations hereunder of each of the parties hereto shall be governed by and interpreted and determined in accordance with the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York.
Section 1.08 Binding Effect. This Amendment No. 1 shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
Section 1.09 Counterparts. This Amendment No. 1 may be executed in any number of counterparts, but all of such counterparts shall together constitute but one and the same agreement. In making proof of this Amendment No. 1, it shall not be necessary to produce or account for more than one counterpart thereof signed by each of the parties hereto. Delivery of an executed counterpart of this Amendment No. 1 by telecopier shall have the same force and effect as delivery of an original executed counterpart of this Amendment No. 1.
[Signature Pages Follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed and delivered by their authorized representatives as of the day and year first above written.
▇▇▇▇▇▇▇ GROUP LLC, a Delaware limited liability company,
as Administrative Borrower and Revolving Loan Borrower
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: ▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: Vice President, General Counsel and Secretary |
| 100 MAPLE LLC, a Delaware limited liability company, as Term Loan Borrower |
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: ▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: Secretary |
[Signature Page to Amendment to ▇▇▇▇▇▇▇ Credit Agreement]
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, a national banking association,
as Agent, a Lender and Issuing Bank
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Title: Vice President |