Attached files

file filename
8-K - FORM 8-K - Catalent Pharma Solutions, Inc.d345843d8k.htm

Exhibit 10.1

AMENDMENT NO. 4 TO THE CREDIT AGREEMENT

AMENDMENT NO. 4 TO THE CREDIT AGREEMENT (this “Amendment”), dated as of April 27, 2012 among CATALENT PHARMA SOLUTIONS, INC., a Delaware corporation (the “Borrower”), PTS INTERMEDIATE HOLDINGS LLC, a Delaware limited liability company (“Holdings”), MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent and Swing Line Lender and each lender party hereto.

PRELIMINARY STATEMENTS:

(1) The Borrower, Holdings, Morgan Stanley Senior Funding, Inc., as Administrative Agent, Collateral Agent and Swing Line Lender, Bank of America, N.A., as L/C Issuer, the other lenders party thereto and the other agents party thereto have entered into a Credit Agreement dated as of April 10, 2007 (as the same may have been amended, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement (as amended by this Amendment).

(2) Section 2.19 of the Credit Agreement provides that Refinancing Term Loans may be provided with the consent of only the Lenders agreeing to make such Refinancing Term Loans.

(3) The Borrower has requested that the Refinancing Dollar Term-2 Lenders (as defined in Exhibit A) provide to the Borrower the Refinancing Dollar Term-2 Loans (as defined in Exhibit A) pursuant to Section 2.19 of the Credit Agreement on the Amendment No. 4 Effective Date (as defined below), in an aggregate principal amount of up to $205,000,000 of the Refinancing Dollar Term-2 Loans having identical terms with, and having the same rights and obligations under the Credit Agreement as, the outstanding Dollar Term-2 Loans.

(4) The proceeds of the Refinancing Dollar Term-2 Loans will be used to refinance in full the Non-Extended Dollar Term-1 Loans.

(5) Morgan Stanley Senior Funding, Inc. has agreed to act as the sole lead arranger for the Refinancing Dollar Term-2 Loans. The Refinancing Dollar Term-2 Lenders have agreed to enter into this Amendment to establish the Refinancing Dollar Term-2 Loans upon the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as follows:

SECTION 1. Amendments to Credit Agreement. The Credit Agreement is, effective as of the Amendment No. 4 Effective Date (as hereinafter defined) and subject to the satisfaction of the conditions precedent set forth in Section 2 hereof, hereby amended as follows:

(a) The Credit Agreement is, effective as of the Amendment No. 4 Effective Date, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.


(b) Schedule 2.01(a)(i) and Schedule 2.01(a)(ii) to the Credit Agreement is each hereby deleted in its entirety and replaced with Schedule 2.01(a)(i) and Schedule 2.01(a)(ii), respectively, to this Amendment.

SECTION 2. Conditions of Effectiveness to Amendment No. 4. Section 1 of this Amendment shall become effective on the date (the “Amendment No. 4 Effective Date”) when, and only when, the following conditions shall have been satisfied:

(a) The Administrative Agent shall have received counterparts of this Amendment executed by each Loan Party and each of the Refinancing Dollar Term-2 Lenders or, as to any of the Refinancing Dollar Term-2 Lenders, written evidence reasonably satisfactory to the Administrative Agent that such Lender has executed this Amendment.

(b) The Administrative Agent shall have received evidence that all reasonable fees and expenses of the Administrative Agent for which reasonably detailed invoices have been presented (including the reasonable fees and expenses of Shearman & Sterling LLP) shall have been paid.

(c) The Administrative Agent shall have received a certificate of the Borrower dated as of the Amendment No. 4 Effective Date signed on behalf of the Borrower by a Responsible Officer of the Borrower, certifying on behalf of the Borrower that, (1) the representations and warranties of the Borrower contained in Article V of the Credit Agreement and in any other Loan Document, are true and correct in all material respects on and as of the Amendment No. 4 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date and (2) no Default or Event of Default has occurred and is continuing, or would immediately result from the occurrence of the Amendment No. 4 Effective Date.

(d) The Administrative Agent shall have received (1) certificates of incumbency and certified copies of the resolutions of the Board of Directors of each Loan Party approving this Amendment and the matters contemplated hereby and (2) the certificate of incorporation or formation and the bylaws or limited liability company agreement of each Loan Party or as to any such Loan Party, a certificate that such constitutive documents of such Loan Party have not changed since February 27, 2012.

(e) The Administrative Agent shall have received a favorable opinion of Simpson Thacher & Bartlett LLP, New York counsel to the Borrower, in form and substance reasonably satisfactory to the Administrative Agent.

(f) Each Lender shall have received, if requested at least two Business Days in advance of the Amendment No. 4 Effective Date, a Note payable to the order of such Lender duly executed by the Borrower in substantially the form of Exhibit C-1 to the Credit Agreement.

(g) The Administrative Agent shall have received by wire transfer of immediately available funds, for the ratable benefit of each Refinancing Dollar Term-2 Lender party hereto, an upfront fee in an amount equal to 1.0% of the aggregate principal amount of Refinancing Dollar Term-2 Loans funded on the Amendment No. 4 Effective Date (it being understood that such fee may take the form of original issue discount on the aggregate principal amount of the Refinancing Dollar Term-2 Loans funded on the Amendment No. 4 Effective Date).

 

2


SECTION 3. Representations and Warranties. Each Loan Party represents and warrants to the Agents and the Lenders that:

(a) Each Loan Party and each of its Subsidiaries (i) is a Person duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization and (ii) has all requisite power and authority to execute and deliver this Amendment and perform its obligations under this Amendment and the Loan Documents to which it is a party.

(b) The execution and delivery by each Loan Party of this Amendment and the performance under this Amendment and the Loan Documents to which such Person is a party, are within such Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01 of the Credit Agreement), or require any payment to be made under (x) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (y) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any material Law; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (ii)(x), to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.

(c) No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Amendment.

(d) This Amendment has been duly executed and delivered by each Loan Party that is party hereto. This Amendment constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party that is party hereto in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity.

SECTION 4. Reference to and Effect on the Credit Agreement and the Loan Documents. (a) On and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment.

(b) The Credit Agreement, as specifically amended by this Amendment, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as amended by this Amendment.

(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

(d) Each Loan Party hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party, (ii) ratifies

 

3


and reaffirms each grant of a lien on, or security interest in, its property made pursuant to the Loan Documents (including, without limitation, the grant of security made by such Loan Party pursuant to the Security Agreement) and confirms that such liens and security interests continue to secure the Obligations under the Loan Documents, subject to the terms thereof and (iii) in the case of each Guarantor, ratifies and reaffirms its guaranty of the Obligations pursuant to the Guaranty.

SECTION 5. Costs and Expenses. The Borrower agrees to pay all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 10.04 of the Credit Agreement.

SECTION 6. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier or other electronic delivery (e.g., “pdf”) shall be effective as delivery of a manually executed counterpart of this Amendment.

SECTION 7. Governing Law. 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]

 

4


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

CATALENT PHARMA SOLUTIONS, INC.
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Senior Vice President and Chief Financial Officer
PTS INTERMEDIATE HOLDINGS LLC
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Chief Financial Officer and Treasurer
CATALENT USA WOODSTOCK, INC.
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Senior Vice President and Chief Financial Officer
CATALENT USA PACKAGING, LLC
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Senior Vice President and Chief Financial Officer
CATALENT PHARMA SOLUTIONS, LLC
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Senior Vice President and Chief Financial Officer
R.P. SCHERER TECHNOLOGIES, LLC
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Treasurer


GLACIER CORPORATION
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Treasurer

CATALENT US HOLDING I, LLC

by Catalent Pharma Solutions, Inc., its Sole Member

By:  

/s/ Samrat S. Kichi

Name:   Samrat S. Kichi
Title:   Sr. VP, General Counsel and Secretary

CATALENT US HOLDING II, LLC

by Catalent Pharma Solutions, Inc., its Sole Member

By:  

/s/ Samrat S. Kichi

Name:   Samrat S. Kichi
Title:   Sr. VP, General Counsel and Secretary
CATALENT CTS HOLDINGS, INC.
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Chief Financial Officer
CATALENT CTS INFORMATICS, INC.
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Chief Financial Officer
CATALENT CTS INTERMEDIATE HOLDINGS, INC.
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Chief Financial Officer
CATALENT CTS, INC.
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Chief Financial Officer


CATALENT CTS (KANSAS CITY), LLC
By:  

/s/ Matthew Walsh

Name:   Matthew Walsh
Title:   Chief Financial Officer


MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent
By:  

/s/ Stephen B. King

Name:   Stephen B. King
Title:   Vice President


Schedule 2.01(a)(i)

Extended Dollar Term-1 Loans: On file with the Administrative Agent


Schedule 2.01(a)(ii)

Dollar Term-2 Loans: On file with the Administrative Agent


Schedule 2.01

Refinancing Dollar Term-2 Loans: On file with the Administrative Agent


Exhibit A

Amendments of the Credit Agreement


TABLE OF CONTENTS

Page

ARTICLE I

Definitions and Accounting Terms

 

SECTION 1.01. Defined Terms    2
SECTION 1.02. Other Interpretive Provisions    63
SECTION 1.03. Accounting Terms    63
SECTION 1.04. Rounding    64
SECTION 1.05. References to Agreements, Laws, Etc.    64
SECTION 1.06. Times of Day    64
SECTION 1.07. Timing of Payment or Performance    64
SECTION 1.08. Currency Equivalents Generally    64
ARTICLE II   
The Commitments and Credit Extensions   
SECTION 2.01. The Loans    65
SECTION 2.02. Borrowings, Conversions and Continuations of Loans    66
SECTION 2.03. Letters of Credit    69
SECTION 2.04. Swing Line Loans    77
SECTION 2.05. Prepayments    79
SECTION 2.06. Termination or Reduction of Commitments    85
SECTION 2.07. Repayment of Loans    86
SECTION 2.08. Interest    87
SECTION 2.09. Fees    87
SECTION 2.10. Computation of Interest and Fees    88
SECTION 2.11. Evidence of Indebtedness    88
SECTION 2.12. Payments Generally    89
SECTION 2.13. Sharing of Payments    91
SECTION 2.14. Incremental Credit Extensions    92
SECTION 2.15. Conversion of Revolving Credit Loans, etc.    94
SECTION 2.16. Extensions of Revolving Credit Loans and Revolving Credit Commitments    94
SECTION 2.17. Conversion of Term Loans    97
SECTION 2.18. Extensions of Term Loans    97
SECTION 2.19. Refinancing Term Loans    99
ARTICLE III   
Taxes, Increased Costs Protection and Illegality   
SECTION 3.01. Taxes    101
SECTION 3.02. Illegality    103
SECTION 3.03. Inability to Determine Rates    103

 

- 3 -


SECTION 3.04. Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans

   104

SECTION 3.05. Funding Losses

   105

SECTION 3.06. Matters Applicable to All Requests for Compensation

   106

SECTION 3.07. Replacement of Lenders under Certain Circumstances

   107

SECTION 3.08. Survival

   108
ARTICLE IV   
Conditions Precedent to Credit Extensions   
SECTION 4.01. Conditions of Initial Credit Extension    108

SECTION 4.02. Conditions to All Credit Extensions

   110
ARTICLE V   
Representations and Warranties   
SECTION 5.01. Existence, Qualification and Power; Compliance with Laws    111

SECTION 5.02. Authorization; No Contravention

   111

SECTION 5.03. Governmental Authorization; Other Consents

   112

SECTION 5.04. Binding Effect

   112

SECTION 5.05. Financial Statements; No Material Adverse Effect

   112

SECTION 5.06. Litigation

   113

SECTION 5.07. No Default

   114

SECTION 5.08. Ownership of Property; Liens

   114

SECTION 5.09. Environmental Compliance

   114

SECTION 5.10. Taxes

   115

SECTION 5.11. ERISA Compliance

   115

SECTION 5.12. Subsidiaries; Equity Interests

   116

SECTION 5.13. Margin Regulations; Investment Company Act

   116

SECTION 5.14. Disclosure

   116

SECTION 5.15. Intellectual Property; Licenses, Etc.

   117

SECTION 5.16. Solvency

   117

SECTION 5.17. Subordination of Junior Financing

   117
ARTICLE VI   
Affirmative Covenants   
SECTION 6.01. Financial Statements    117

SECTION 6.02. Certificates; Other Information

   118

SECTION 6.03. Notices

   120

SECTION 6.04. Payment of Obligations

   120

SECTION 6.05. Preservation of Existence, Etc.

   121

SECTION 6.06. Maintenance of Properties

   121

SECTION 6.07. Maintenance of Insurance

   121

SECTION 6.08. Compliance with Laws

   121

SECTION 6.09. Books and Records

   121


SECTION 6.10. Inspection Rights

   121

SECTION 6.11. Covenant to Guarantee Obligations and Give Security

   122

SECTION 6.12. Compliance with Environmental Laws

   124

SECTION 6.13. Further Assurances and Post-Closing Conditions

   124

SECTION 6.14. Designation of Subsidiaries

   125

SECTION 6.15. Post-Closing Matters

   125
ARTICLE VII   
Negative Covenants   
SECTION 7.01. Liens    126

SECTION 7.02. Investments

   130

SECTION 7.03. Indebtedness

   134

SECTION 7.04. Fundamental Changes

   138

SECTION 7.05. Dispositions

   140

SECTION 7.06. Restricted Payments

   142

SECTION 7.07. Change in Nature of Business

   145

SECTION 7.08. Transactions with Affiliates

   145

SECTION 7.09. Burdensome Agreements

   146

SECTION 7.10. Use of Proceeds

   147

SECTION 7.11. Accounting Changes

   147

SECTION 7.12. Prepayments, Etc. of Indebtedness

   147

SECTION 7.13. Equity Interests of Certain Restricted Subsidiaries

   148
ARTICLE VIII   
Events of Default and Remedies   
SECTION 8.01. Events of Default    148

SECTION 8.02. Remedies Upon Event of Default

   151

SECTION 8.03. Exclusion of Immaterial Subsidiaries

   151

SECTION 8.04. Application of Funds

   151
ARTICLE IX   
Administrative Agent and Other Agents   
SECTION 9.01. Appointment and Authorization of Agents    152

SECTION 9.02. Delegation of Duties

   153

SECTION 9.03. Liability of Agents

   154

SECTION 9.04. Reliance by Agents

   154

SECTION 9.05. Notice of Default

   155

SECTION 9.06. Credit Decision; Disclosure of Information by Agents

   155

SECTION 9.07. Indemnification of Agents

   155

SECTION 9.08. Agents in their Individual Capacities

   156

SECTION 9.09. Successor Agents

   156

SECTION 9.10. Administrative Agent May File Proofs of Claim

   157

SECTION 9.11. Collateral and Guaranty Matters

   158


SECTION 9.12. Other Agents; Arrangers and Managers

   159

SECTION 9.13. Appointment of Supplemental Administrative Agents

   159
ARTICLE X   
Miscellaneous   
SECTION 10.01. Amendments, Etc.    160

SECTION 10.02. Notices and Other Communications; Facsimile Copies

   163

SECTION 10.03. No Waiver; Cumulative Remedies

   164

SECTION 10.04. Attorney Costs and Expenses

   164

SECTION 10.05. Indemnification by the Borrower

   164

SECTION 10.06. Payments Set Aside

   165

SECTION 10.07. Successors and Assigns

   166

SECTION 10.08. Confidentiality

   170

SECTION 10.09. Setoff

   170

SECTION 10.10. Interest Rate Limitation

   171

SECTION 10.11. Counterparts

   171

SECTION 10.12. Integration

   171

SECTION 10.13. Survival of Representations and Warranties

   172

SECTION 10.14. Severability

   172

SECTION 10.15. Tax Forms

   172

SECTION 10.16. GOVERNING LAW

   174

SECTION 10.17. WAIVER OF RIGHT TO TRIAL BY JURY

   174

SECTION 10.18. Binding Effect

   175

SECTION 10.19. Judgment Currency

   175

SECTION 10.20. Lender Action

   175

SECTION 10.21. USA PATRIOT Act

   176

SECTION 10.22. Agent for Service of Process

   176

SCHEDULES

 

1    Guarantors
1.01A    Certain Security Interests and Guarantees
1.01B    Unrestricted Subsidiaries
1.01C    Mandatory Cost
1.01D    Excluded Subsidiaries
2.01(a)(i)    Dollar Term-1 Commitment
2.01(a)(ii)    Dollar Term-2 Commitment
2.01(b)    Euro Term Commitment
2.01(c)    Revolving Credit Commitment
2.03(a)(ii)(B)    Certain Letters of Credit


Agreement” means this Credit Agreement.

Agreement Currency” has the meaning specified in Section 10.19.

Amendment No. 1” means Amendment No. 1 to this Agreement, dated as of June 1, 2011 among Holdings, the Borrower, the Lenders party thereto and the Administrative Agent.

Amendment No. 1 Effective Date” means June 1, 2011.

Amendment No. 2” means Amendment No. 2 to this Agreement, dated as of February 17, 2012, among Holdings, the Borrower, the Lenders party thereto and the Administrative Agent.

Amendment No. 2 Effective Date” has the meaning specified in Amendment No. 2. For the avoidance of doubt, the Amendment No. 2 Effective Date constitutes an Incremental Facility Closing Date hereunder.

Amendment No. 3” means Amendment No. 3 to this Agreement, dated as of February 27, 2012 among Holdings, the Borrower, the Lenders party thereto and the Administrative Agent.

Amendment No. 3 Effective Date” means February 27, 2012.

Amendment No. 4” means Amendment No. 4 to this Agreement, dated as of April 27, 2012, among Holdings, the Borrower, the Lenders party thereto and the Administrative Agent.

Amendment No. 4 Effective Date” means April 27, 2012.

Applicable Rate” means:

(a) in respect of the Non-Extended Dollar Term-1 Facility and Non-Extended Euro Term Facility, a percentage per annum equal to the following percentages per annum, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

Applicable Rate

 

Pricing

Level

 

Total Leverage

Ratio

 

Eurocurrency Rate

for Non-Extended

Dollar Term-1

Loans and Non-Exten

 

Base Rate

for Non-Extended

Dollar Term-1

Loans and Non-Exten


Undertakings. The grant of a security interest in any Securitization Assets of the Borrower or any of its Restricted Subsidiaries (other than a Securitization Subsidiary) to secure Indebtedness under this Agreement prior to engaging in any Securitization Financing shall not be deemed a Qualified Securitization Financing.

Qualifying IPO” means the issuance by Holdings, any Intermediate Holding Company, any direct or indirect parent of Holdings or the Borrower of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).

Refinancing Dollar Term-2 Borrowingmeans a borrowing pursuant to Section 2.01(a)(iii) consisting of Refinancing Dollar Term-2 Loans of the same Type made by the Refinancing Dollar Term-2 Lenders and, in the case of Eurocurrency Rate Loans, having the same Interest Period. A Refinancing Dollar Term-2 Borrowing shall constitute a Dollar Term-2 Borrowing for purposes of any Committed Loan Notice therefor and immediately after the funding thereof, for all purposes.

Refinancing Dollar Term-2 Commitment” means, in respect of each Refinancing Dollar Term-2 Lender that is a Refinancing Dollar Term-2 Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule 2.01 to Amendment No. 4 under the caption “Refinancing Dollar Term-2 Commitment”.

Refinancing Dollar Term-2 Lender” means, at any time, any Lender that has a Refinancing Dollar Term-2 Commitment or a Refinancing Dollar Term-2 Loan at such time. Immediately after the funding of the Refinancing Dollar Term-2 Loans, a Refinancing Dollar Term-2 Lender shall constitute a Dollar Term-2 Lender for all purposes.

Refinancing Dollar Term-2 Loan” means a Loan made pursuant to Section 2.01(a)(iii). For the avoidance of doubt, the Refinancing Dollar Term-2 Loans constitute a tranche of Refinancing Term Loans hereunder. The Refinancing Dollar Term-2 Loans shall constitute Dollar Term-2 Loans for purposes of any Committed Loan Notice therefor and immediately after the funding thereof, for all purposes (i.e, the Refinancing Dollar Term-2 Loans and Dollar Term-2 Loans shall constitute one single Class and have the same terms and conditions, including, without limitation, those in respect of assignments, interest rates, maturity, prepayments and all other provisions under the Loan Documents).

Refinancing Effective Date” has the meaning specified in Section 2.19.

Refinancing Term Lender” has the meaning specified in Section 2.19.

Refinancing Term Loan Amendment” has the meaning specified in Section 2.19.

Refinancing Term Loans” has the meaning specified in Section 2.19.

Register” has the meaning specified in Section 10.07(d).

 

- 52 -


Term-1 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

(ii) The Dollar Term-2 Borrowings. Subject to the terms and conditions set forth herein, each Dollar Term-2 Lender severally agrees to make to the Borrower a single loan denominated in Dollars in a principal amount equal to such Term Lender’s Dollar Term-2 Commitment on the Amendment No. 2 Effective Date. Amounts borrowed under this Section 2.01(a)(ii) and repaid or prepaid may not be reborrowed. Dollar Term-2 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

(iii) The Refinancing Dollar Term-2 Borrowings. Subject to the terms and conditions set forth herein, each Refinancing Dollar Term-2 Lender severally agrees to make to the Borrower a single loan denominated in Dollars in a principal amount equal to such Term Lender’s Refinancing Dollar Term-2 Commitment on the Amendment No. 4 Effective Date. Amounts borrowed under this Section 2.01(a)(iii) and repaid or prepaid may not be reborrowed. Refinancing Dollar Term-2 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

(b) The Euro Term Borrowings. Subject to the terms and conditions set forth herein, each Euro Term Lender severally agrees to make to the Borrower a single loan (which will be converted into Extended Euro Term Loans and Non-Extended Euro Term Loans pursuant to Section 2.17(c) and Section 2.17(d)) denominated in Euros in a principal amount equal to such Term Lender’s Euro Term Commitment on the Closing Date. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed. Euro Term Loans must be Eurocurrency Rate Loans, as further provided herein.

(c) The Revolving Credit Borrowings. Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans to the Borrower as elected by the Borrower pursuant to Section 2.02 (each such loan, a “Revolving Credit Loan”) from time to time, on any Business Day after the Closing Date until the Maturity Date (provided that each Revolving Credit Lender agrees to make the Initial Revolving Borrowing, at the request of the Borrower, on the Closing Date), in an aggregate principal amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided that, after giving effect to any Revolving Credit Borrowing, the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment. Within the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(c), prepay under Section 2.05 and reborrow under this Section 2.01(c). Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

SECTION 2.02. Borrowings, Conversions and Continuations of Loans.

(a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the

 

- 66 -


of payments hereunder, with such allocation being determined after giving effect to (1) any exchange pursuant to Section 2.16 of Revolving Credit Commitments and Revolving Credit Loans into Extended Revolving Credit Commitments and Extended Revolving Credit Loans, respectively, and (2) any such reduction of the Revolving Credit Commitments in respect of the applicable Specified Existing Revolving Credit Commitment Class).

SECTION 2.07. Repayment of Loans.

(a) Dollar Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of (i) the Dollar Term-1 Lenders (A) on the last Business Day of each March, June, September and December, commencing with the last Business Day of September 2007, an aggregate principal amount equal to 0.25% of the aggregate principal amount of all Dollar Term-1 Loans outstanding on the Closing Date (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05) and (B) on the applicable Maturity Date for such Dollar Term-1 Loans, the aggregate principal amount of all such Dollar Term-1 Loans outstanding on such date and (ii) the Dollar Term-2 Lenders (A) on the last Business Day of March 2012, an aggregate principal amount equal to 0.25% of the aggregate principal amount of all Dollar Term-2 Loans outstanding on the Amendment No. 2 Effective Date (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05), (B) on the last Business Day of each March, June, September and December, commencing with the last Business Day of MarchJune 2012, an aggregate principal amount equal to 0.25% of the aggregate principal amount of all Dollar Term-2 Loans outstanding on the Amendment No. 24 Effective Date (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05) and (BC) on the Maturity Date for the Dollar Term-2 Loans, the aggregate principal amount of all Dollar Term-2 Loans outstanding on such date.”

(b) Euro Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Euro Term Lenders (i) on the last Business Day of each March, June, September and December, commencing with the last Business Day of September 2007, an aggregate principal amount equal to 0.25% of the aggregate principal amount of all Euro Term Loans outstanding on the Closing Date (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05) and (ii) on the applicable Maturity Date for such Euro Term Loans, the aggregate principal amount of all such Euro Term Loans outstanding on such date.

(c) Revolving Credit Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders on the Maturity Date for the Revolving Credit Facility the aggregate principal amount of all of its Revolving Credit Loans outstanding on such date.

(d) Swing Line Loans. The Borrower shall repay its Swing Line Loans on the earlier to occur of (i) the date five (5) Business Days after such Loan is made and (ii) the Maturity Date for the Revolving Credit Facility.

 

- 86 -


7.03(g) only, to the Restricted Subsidiaries incurring or guaranteeing such Indebtedness, (ix) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary, (x) are customary provisions restricting assignment of any agreement entered into in the ordinary course of business, (xi) are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business, (xii) are customary restrictions contained in the Senior Notes Indenture, the Senior Subordinated Notes Indenture or the Subordinated Lien Facility and (xiii) arise in connection with cash or other deposits permitted under Section 7.01.

SECTION 7.10. Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, in a manner inconsistent with the uses set forth in the preliminary statements to this Agreement. The proceeds of the Dollar Term-2 Borrowing shall be used solely (i) to finance the consideration for the Aptuit Acquisition, (ii) to refinance the existing Indebtedness of the entities acquired by the Borrower in the Aptuit Acquisition and (iii) to pay any fees, costs and expenses incurred in connection with Amendment No. 2 and the Aptuit Acquisition. The proceeds of the Refinancing Dollar Term-2 Borrowing shall be used solely (i) to refinance the Non-Extended Dollar Term-1 Loans and (ii) to pay any fees, costs and expenses incurred in connection with such refinancing and Amendment No. 4.

SECTION 7.11. Accounting Changes. Make any change in fiscal year; provided, however, that the Borrower may, upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary to reflect such change in fiscal year.

SECTION 7.12. Prepayments, Etc. of Indebtedness.

(a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that payments of regularly scheduled principal, interest and mandatory prepayments shall be permitted) the Senior Subordinated Notes, any subordinated Indebtedness incurred under Section 7.03(y) or 7.03(n) or any other Indebtedness that is or is required to be subordinated to the Obligations pursuant to the terms of the Loan Documents (collectively, “Junior Financing”) or make any payment in violation of any subordination terms of any Junior Financing Documentation, except (i) the refinancing thereof with the Net Cash Proceeds of any Indebtedness (to the extent such Indebtedness constitutes a Permitted Refinancing and, if applicable, is permitted pursuant to Section 7.03(y)), to the extent not required to prepay any Loans or Facility pursuant to Section 2.05(b) or the prepayment thereof with Declined Proceeds, (ii) the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of Holdings or any of its direct or indirect parents, (iii) the prepayment of Indebtedness of the Borrower or any Restricted Subsidiary to the Borrower or any Restricted Subsidiary to the extent permitted by the Collateral Documents and (iv) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity in an aggregate amount, together with the aggregate amount of (1) Restricted Payments made pursuant to Section 7.06(k) and (2) loans and advances to the Borrower made pursuant to Section 7.02(n), not to exceed the sum of (A) the greater of $100,000,000 and 2.5% of Total Assets, (B) the amount of the Net Cash

 

- 147 -