Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - MONEYGRAM INTERNATIONAL INC | d81502e8vk.htm |
Exhibit 4.1
THIRD SUPPLEMENTAL INDENTURE
This Third Supplemental Indenture (this “Third Supplemental Indenture”), dated as of April 19,
2011, among MoneyGram Payment Systems Worldwide, Inc. (or its permitted successor), a Delaware
corporation (the “Company”), the Guarantors (as defined in the Indenture referred to herein) and
Deutsche Bank Trust Company Americas, a New York banking corporation, as trustee and collateral
agent under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Base Indenture”), dated as of March 25, 2008, providing for the issuance of 13.25% Senior Secured
Second Lien Notes due 2018 (the “Notes”) and a first supplemental Indenture thereto and second
supplemental Indenture thereto (together with the Base Indenture, the “Indenture”);
WHEREAS, Section 9.02 of the Indenture provides that the Company and the Trustee may amend or
supplement the Indenture with the consent of the Holders specified in Section 9.02;
WHEREAS, Holders of 100% of the aggregate principal amount of the outstanding Notes have
provided written consent to this Third Supplemental Indenture; and
WHEREAS, the execution of this Third Supplemental Indenture by the parties hereto is in all
respects authorized by the provisions of the Indenture, the Company has delivered to the Trustee an
officer’s certificate and an opinion of counsel with respect to such execution, and all things
necessary to make this Third Supplemental Indenture a valid agreement between the Company and the
Trustee in accordance with its terms have been done.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. Amendments. The Indenture is hereby amended as follows:
(a) Section 1.01 is hereby amended by inserting in alphabetical order the following
definitions:
“Recapitalization” means each of the transactions contemplated to occur
pursuant to Section 1.1 of the Recapitalization Agreement upon the Recapitalization
Closing Date.
“Recapitalization Agreement” means that certain Recapitalization Agreement, dated as
of March 7, 2011, among Holdco, the THL Investors and the GS Investors (each as
defined therein), as in effect on the date hereof.
“Recapitalization Closing Date” means the “Closing Date” as defined in the
Recapitalization Agreement.
“Recapitalization Consent Fee” means a fee payable in cash in immediately available
funds to the Holders in an aggregate principal amount of $5,000,000.
“Third Supplemental Indenture” means that certain Third Supplemental Indenture,
dated as of April 19, 2011, among the Company, the Guarantors and the Trustee.
“Third Supplemental Indenture Effective Date” means the “Effective Date” as defined
in the Third Supplemental Indenture.
(b) Section 1.01 is hereby amended by:
(i) amending clause (1)(d) of the definition of “Adjusted EBITDA” by adding “(including
the Recapitalization)” immediately following the reference to “recapitalization” appearing
therein;
(ii) amending clause (f) of the definition of “Asset Sale” to read in full as follows:
“(f) (i) any disposition of property or assets or issuance of
securities by a Non-Guarantor to the Company or a Company
Subsidiary, and (ii) any disposition of property or assets by a
foreign Non-Guarantor to another foreign Non-Guarantor;”
(iii) amending clause (5)(ii) of the definition of “Highly Rated Investments” to read
in full as follows:
“(ii) rated A3 or better by Moody’s and A- or better by S&P.”
(iv) amending the definition of “Permitted Holdco Indebtedness” to (x) delete the word
“and” appearing at the end of clause (3) thereof, (y) renumbering clause (4) thereof to
clause (5) and (z) adding the following immediately following the end of clause (3)
thereof:
“(4) unsecured Indebtedness incurred by Holdco to the extent:
(a) such Indebtedness could have been incurred by the
Company in compliance with Section 4.09(a) (it being
understood that so long as such Indebtedness of Holdco remains
outstanding, it shall be treated as outstanding Indebtedness
of the Company for purposes of determining
2
whether other Indebtedness of the Company may be incurred
under Section 4.09(a));
(b) no principal payments required under such
Indebtedness have a stated maturity prior to March 25, 2019;
and
(c) the net proceeds of such Indebtedness are contributed as
equity to the capital of the Company; and”
(v) amending clause (2) of the definition of “Permitted Investments” to read in full as
follows:
“(2) (a) Investments in any foreign Non-Guarantor (other than SPEs)
outstanding on the Third Supplement Indenture Effective Date, (b)
Investments in any foreign Non-Guarantor (other than SPEs) that,
together with all other investments made pursuant to this clause (2)
following the Third Supplemental Indenture Effective Date, shall not
exceed $150.0 million, and (c) any Investments made by any foreign
Non-Guarantor in another foreign Non-Guarantor consisting of (x)
dispositions of property that are not Asset Sales or (y) loans,
guarantees or other extensions of credit;”
(c) Section 4.07(a)(iii) is hereby amended by replacing the reference to Sections “(6) and
(7)” therein with “(6), (7) and (11)” and Section 4.07(a)(iii)(A) is hereby amended by changing the
reference to the “Closing Date” appearing therein to the “Third Supplemental Indenture Effective
Date.”
(d) Section 4.07(b) is hereby amended by (i) replacing the language in clause (7)(G) therein
in its entirety with “(G) amounts required to be paid by Holdco (x) to service interest expense
and unpaid commitment fees in connection with Permitted Holdco Indebtedness incurred pursuant to
clause (4) of the definition of Permitted Holdco Indebtedness and (y) in connection with clause (5)
of the definition of Permitted Holdco Indebtedness;” (ii) deleting the reference to “or” appearing
at the end of clause (9) thereof; (iii) adding the word “or” at the end of clause (10) thereof, and
(iv) adding the following clause (11) immediately following the end of clause (10) thereof (and
prior to the first provision appearing thereafter):
“(11) the consummation of the Recapitalization on the Recapitalization Closing Date
in accordance with the Recapitalization Agreement, provided, that (a) the total cash
paid to holders of Capital Stock of Holdco after the Third Supplemental Indenture
Effective Date and through the consummation of the Recapitalization (which will be
funded by distributions by the Company to Holdco) does not exceed $254 million,
consisting of the sum of (x) $219 million paid pursuant to Section 1.1(d)(iii) of
the Recapitalization Agreement plus (y) an amount (not to exceed $35 million) equal
to the dividends payable on the Series B Participating Convertible Preferred Stock
of Holdco and the Series B-1 Participating
3
Convertible Preferred Stock of Holdco pursuant to Section 1.1(d)(ii) of the
Recapitalization Agreement plus (z) additional Restricted Payments otherwise
permitted under this Section 4.07 (other than this clause (11)) and (b) concurrently
with the consummation of the Recapitalization, the Company shall have paid the
Recapitalization Consent Fee to the Holders of the Notes pro rata in accordance with
the principal amount of Notes held by the Holders.”
(e) Section 4.09(a) is hereby amended to change the reference to $10.0 million appearing
therein to $25.0 million.
(f) Section 4.09(b)(1) is hereby amended and restated in its entirety to read as follows:
“(1) the incurrence by the Company of pari passu secured Indebtedness under Credit
Facilities, the guarantee by the Guarantors of the Company’s obligations thereunder
and the issuance and creation of letters of credit and bankers’ acceptances
thereunder (with letters of credit and bankers’ acceptances being deemed to have a
principal amount equal to the face amount thereof), up to an aggregate principal
amount equal to the sum of (x) $575.0 million less the aggregate amount of all Net
Proceeds of Asset Sales or Specified SRI Sales applied by the Company since the
Third Supplemental Indenture Effective Date to repay any such Indebtedness under
Credit Facilities, and in the case of revolving facilities, that effect a
corresponding reduction in commitments thereunder, plus (y) up to $175.0 million of
incremental loans made under the Credit Facilities so long as the proceeds of such
incremental loans are used to effect an optional redemption of the Notes;”
(g) Clause (9) of Section 4.09(b) is amended to read in full as follows:
“(9) (A) Indebtedness or preferred stock in an aggregate amount outstanding at any
time not to exceed $150.0 million of the Company or of a Subsidiary Guarantor owing
to a Non-Guarantor (other than an SPE) that is subordinated in right of payment to
the Note Guarantee of such Subsidiary Guarantor on terms satisfactory to the Initial
Purchasers, (B) Indebtedness or preferred stock in an aggregate amount outstanding
at any time not to exceed $150.0 million of a Non-Guarantor (other than an SPE)
owing to the Company or to a Subsidiary Guarantor, and (C) Indebtedness or preferred
stock of a foreign Non-Guarantor owing to another foreign Non-Guarantor; provided,
that any subsequent transfer of any such Indebtedness or preferred stock (except to
the Company or another Company Subsidiary) shall be deemed, in each case, to be an
incurrence of such Indebtedness that was not permitted by this clause (9);”
(h) Section 4.09 is hereby amended (i) by deleting the “and” appearing at the end of clause
(20) thereof, (ii) replacing the “.” appearing at the end of clause (21) with “; and” and (iii)
adding the following clause (22) immediately following the end of clause (21) thereof:
4
“(22) Indebtedness in respect of treasury, depositary and cash management services
or automated clearinghouse transfer of funds (including, without limitation,
controlled disbursement, return items, interstate depository network services,
corporate card services and international wire services) in the ordinary course of
business at any one time outstanding, in each case, arising under the terms of
customary agreements with any bank that provides the Company or any Company
Subsidiary such services.”
(i) Section 4.11(b) is hereby amended (i) by deleting the “and” appearing at the end of clause
(7) thereof, (ii) replacing the “.” appearing at the end of clause (8) thereof with “; and” and
(iii) adding the following clause (9) immediately following the end of clause (8) thereof:
“(9) the consummation of the Recapitalization and the other transactions
contemplated by the Recapitalization Agreement.”
3. PropertyBridge, Inc. Notwithstanding anything to the contrary contained in the
Indenture, no Opinion of Counsel shall be required to be delivered to the Trustee in connection
with any release of Collateral or of PropertyBridge, Inc. (“PB”) as a Guarantor in connection with
any sale of all or substantially all of the assets or capital stock of PB made in compliance with
the Indenture.
4. Amendment to Intercreditor Agreement. The Intercreditor Agreement shall be amended
as follows (or a replacement intercreditor agreement on substantially similar terms acceptable to
the Required Holders entered into in connection with the Financing (as defined in the
Recapitalization Agreement) shall include terms of similar effect) and the Trustee, as Second
Priority Representative for and on behalf of the Second Priority Secured Parties, shall be
authorized and directed to enter into an amendment to the Intercreditor Agreement to give effect
thereto:
(a) Section 1 shall be amended by adding the following defined term thereto in the proper
alphabetical order:
“Cash Management Obligations” means Indebtedness and other obligations incurred by
the Borrower or any other Loan Party under Section 4.09(b)(22) of the Indenture and
owed to any First Priority Lender (or any Affiliate thereof) or any Person who was a
First Priority Lender or Affiliate thereof at the time of the applicable
transaction.
(b) The second recital shall be amended by changing the words “as in effect on the date
hereof” appearing in the parenthetical to read “as amended through the first, second and third
supplemental indentures thereto”.
(c) Section 1 shall be amended by (i) adding the words “and Cash Management Obligations” in
clause (iii) of the definition of First Priority Obligations and in clause (b)(i) of the definition
of Maximum First Priority Obligations Amount, in each case immediately following the reference to
“Hedging Obligations” appearing therein, and (ii) clause (a) of the definition of Maximum First
Priority Obligations Amount to read in full as follows:
5
“(a) $675 million plus the principal amount of incremental loans made to the Company
under the Credit Agreement permitted by Section 4.09(b)(1)(y) of the Existing Second
Priority Agreement,”
5. Effect. This Third Supplemental Indenture shall become effective immediately upon
its execution by the parties hereto (such date, the “Effective Date”); provided that the
effectiveness of the amendments referred to in paragraphs (b)(iv), (c), (d), (f), (h) and (i) of
Section 2 of this Third Supplemental Indenture and Section 4 in its entirety of this Third
Supplemental Indenture shall be subject to (i) the consummation of the Recapitalization in
accordance with the terms of the Recapitalization Agreement without any waiver or modification
thereof (except to the extent such changes are approved in writing by the Required Holders), and
(ii) the consummation of the Financing to effect the Recapitalization in an amount and on terms
reasonably acceptable to the Required Holders, it being understood that Financing on terms, taken
as a whole, not materially less favorable to the Company than those set forth in the term sheet
attached as Annex B to the Recapitalization Agreement shall be deemed to be reasonably acceptable
to the Required Holders.
6. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS THIRD SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
7. Effect on Indenture. This Third Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and
delivered shall be bound hereby. Except as expressly set forth herein, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect, including with respect to this Third Supplemental Indenture. This Third
Supplemental Indenture shall not be deemed to be a waiver of, or consent to, or a modification or
amendment of, any other term or condition of the Indenture or the Notes or to prejudice any other
right or rights which the Holders of the Notes may now have or may have in the future under or in
connection with the Indenture or any of the instruments or agreements referred to therein, as the
same may be amended from time to time.
8. Separability Clause. In case any provision in this Third Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
9. Counterparts. The parties may sign any number of copies of this Third Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. This Third Supplemental Indenture may be executed by any party hereto by original or
facsimile signature, or electronic format (including pdf) signature, and any facsimile or
electronic signature shall also be deemed valid, binding and enforceable as an original signature.
10. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
6
11. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Third Supplemental Indenture or for or in respect
of the recitals contained herein, all of which recitals are made solely by the Guarantors and the
Company.
[Signature pages follow]
7
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be
duly executed and attested, all as of the date first above written.
Date: April 19, 2011
| MONEYGRAM PAYMENT SYSTEMS WORLDWIDE, INC. |
||||
| By: | /s/ Jim Shields | |||
| Name: | Jim Shields | |||
| Title: | Chief Financial Officer | |||
[Signature Page to Third Supplemental Indenture]
| MONEYGRAM INTERNATIONAL, INC. MONEYGRAM PAYMENT SYSTEMS, INC. MONEYGRAM OF NEW YORK, LLC PROPERTYBRIDGE, INC. |
||||
| By: | /s/ Jim Shields | |||
| Name: | Jim Shields | |||
| Title: | Chief Financial Officer | |||
[Signature Page to Third Supplemental Indenture]
| DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as Trustee and Collateral Agent |
||||
| By: | Deutsche Bank National Trust Company | |||
| By: | /s/ David Contino | |||
| David Contino | ||||
| Vice President | ||||
| By: | /s/ Irina Golovashchuk | |||
| Irinia Golovashchuk | ||||
| Assistant Vice President | ||||
[Signature Page to Third Supplemental Indenture]