AMENDMENT NO. 1 TO THE CREDIT AGREEMENT

EX-10.1 2 dex101.htm AMENDMENT NO. 1 RELATING TO THE CREDIT AGREEMENT Amendment No. 1 relating to the Credit Agreement

Exhibit 10.1

EXECUTION VERSION

AMENDMENT NO. 1 TO THE CREDIT AGREEMENT

AMENDMENT NO. 1 TO THE CREDIT AGREEMENT (this “Amendment”), dated as of June 1, 2011 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.

(2) The Borrower has requested an extension of the maturity date for the Revolving Credit Loans and Revolving Credit Commitments and other amendments to the Credit Agreement, as hereinafter set forth.

(3) Each Revolving Credit Lender who executes and delivers to the Administrative Agent a counterpart to this Amendment as an “Extending and Consenting Lender” prior to the effectiveness of this Amendment shall be deemed, upon the effectiveness of Section 1 of this Amendment, to have (a) converted its Revolving Credit Commitment into a Revolving Tranche-2 Commitment (as defined hereinafter), in the aggregate amount set forth (i) on such Lender’s signature page hereto and (ii) opposite such Lender’s name on Schedule 2.01(c) under the caption “Revolving Tranche-2 Commitment” and (b) converted its outstanding Revolving Credit Loans into Revolving Tranche-2 Loans (as defined hereinafter) in a percentage equal to the percentage of such Revolving Credit Lender’s Revolving Credit Commitment that will be converted to a Revolving Tranche-2 Commitment upon the effectiveness of this Amendment.

(4) To the extent not so converted and extended upon the effectiveness of this Amendment, any amount of Revolving Credit Commitment and Revolving Credit Loan shall remain in place under the Credit Agreement and be renamed as Revolving Tranche-1 Commitment and Revolving Tranche-1 Loan, respectively, with the same respective terms, rights and obligations under the Loan Documents as before giving effect to this Amendment, except as otherwise set forth herein.

(5) The Borrower and the Required Lenders party hereto have agreed to amend the Credit Agreement to effect the changes described above and other changes as hereinafter set forth.

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:

 

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SECTION 1. Amendments to Credit Agreement. The Credit Agreement is, effective as of the Amendment No. 1 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) Section 1.01 is amended to add the following new definitions in the appropriate alphabetical position:

“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.

“Existing Class” shall mean each Class of Existing Revolving Credit Loans and Existing Revolving Credit Commitments.

“Existing Revolving Credit Commitment” has the meaning specified in Section 2.16(a).

“Existing Revolving Credit Loans” has the meaning specified in Section 2.16(a).

“Extended Revolving Credit Commitment” has the meaning specified in Section 2.16(a).

“Extended Revolving Credit Loans” has the meaning specified in Section 2.16(a).

“Extending Lender” has the meaning specified in Section 2.16(b).

“Extension Agreement” has the meaning specified in Section 2.16(c).

“Extension Election” has the meaning specified in Section 2.16(b).

“Extension Series” shall mean all Extended Revolving Credit Commitments that are established pursuant to the same Extension Agreement (or any subsequent Extension Agreement to the extent such Extension Agreement expressly provides that the Extended Revolving Credit Commitments, provided for therein are intended to be a part of any previously established Extension Series) and that provide for the same interest margins, extension fees, if any, and amortization schedule.

“Revolving Credit Extension Request” has the meaning specified in Section 2.16(a).

“Revolving Tranche-1 Borrowing” means a borrowing consisting of Revolving Tranche-1 Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Revolving Tranche-1 Lenders pursuant to Section 2.01(c)(i) or Section 2.15(b).

 

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“Revolving Tranche-1 Commitment” means, as to each Revolving Tranche-1 Lender, its obligation to (a) make Revolving Tranche-1 Loans to the Borrower pursuant to Section 2.01(c)(i), (b) purchase participations in L/C Obligations in respect of Letters of Credit and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth, and opposite such Lender’s name on Schedule 2.01(c) under the caption “Revolving Tranche-1 Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Revolving Tranche-1 Commitments of all Revolving Tranche-1 Lenders shall be $149,750,000 on the Amendment No. 1 Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.

“Revolving Tranche-1 Facility” means, at any time, the aggregate amount of the Revolving Tranche-1 Lenders’ Revolving Tranche-1 Commitments at such time.

“Revolving Tranche-1 Lender” means, at any time, any Lender that has a Revolving Tranche-1 Commitment at such time.

“Revolving Tranche-1 Loan” means each loan to the Borrower (a) made pursuant to Section 2.01(c)(i) or (b) converted as Revolving Tranche-1 Loans pursuant to Section 2.15(b).

“Revolving Tranche-1 Note” means a promissory note of the Borrower payable to any Revolving Tranche-1 Lender or its registered assigns, in substantially the form of Exhibit C-3 hereto, evidencing the aggregate Indebtedness of the Borrower to such Revolving Tranche-1 Lender resulting from the Revolving Tranche-1 Loans made by such Revolving Tranche-1 Lender.

“Revolving Tranche-2 Borrowing” means a borrowing consisting of Revolving Tranche-2 Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Revolving Tranche-2 Lenders pursuant to Section 2.01(c)(ii) or Section 2.15(a).

“Revolving Tranche-2 Commitment” means, as to each Revolving Tranche-2 Lender, its obligation to (a) make Revolving Tranche-2 Loans to the Borrower pursuant to Section 2.01(c)(ii), (b) purchase participations in L/C Obligations in respect of Letters of Credit and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth, and opposite such Lender’s name on Schedule 2.01(c) under the caption “Revolving Tranche-2 Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Revolving Tranche-2 Commitments of all Revolving Tranche-2 Lenders shall be $200,250,000 on the Amendment No. 1 Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.

 

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“Revolving Tranche-2 Condition” means, with respect to any Revolving Tranche-2 Loan, Revolving Tranche-2 Borrowing, Revolving Tranche-2 Letter of Credit or Revolving Tranche-2 Swing Line Loan, or any reallocation of risk participation of any Revolving Tranche-2 Letter of Credit or Revolving Tranche-2 Swing Line Loan, the condition that at the time of and after giving effect to the making of such Revolving Tranche-2 Loan, Revolving Tranche-2 Borrowing or reallocation or the issuance (or if applicable, renewal or amendment) of such Revolving Tranche-2 Letter of Credit, each Revolving Tranche-2 Lender’s Pro Rata Share (calculated as if Revolving Tranche-1 Lenders’ Pro Rata Share of the risk participation in respect of any Revolving Tranche-2 Letter of Credit is zero) of the Outstanding Amount of all L/C Obligations, plus such Revolving Tranche-2 Lender’s Pro Rata Share (calculated as if Revolving Tranche-1 Lenders’ Pro Rata Share of the risk participation in respect of any Revolving Tranche-2 Swing Line Loan is zero) of the Outstanding Amount of all Swing Line Loans, plus the Outstanding Amount of such Revolving Tranche-2 Lender’s Revolving Tranche-2 Loans, does not exceed such Revolving Tranche-2 Lenders’ Revolving Tranche-2 Commitment.

“Revolving Tranche-2 Facility” means, at any time, the aggregate amount of the Revolving Tranche-2 Lenders’ Revolving Tranche-2 Commitments at such time.

“Revolving Tranche-2 Lender” means, at any time, any Lender that has a Revolving Tranche-2 Commitment at such time.

“Revolving Tranche-2 Letter of Credit” means any Letter of Credit requested to be issued or renewed by the Borrower that at the time of such request would expire on a day later than the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for the Revolving Tranche-1 Facility (or, if such day is not a Business Day, the next preceding Business Day).

“Revolving Tranche-2 Loan” means each loan to the Borrower (a) made pursuant to Section 2.01(c)(ii) or (b) converted as Revolving Tranche-2 Loans pursuant to Section 2.15(a).

“Revolving Tranche-2 Note” means a promissory note of the Borrower payable to any Revolving Tranche-2 Lender or its registered assigns, in substantially the form of Exhibit C-3 hereto, evidencing the aggregate Indebtedness of the Borrower to such Revolving Tranche-2 Lender resulting from the Revolving Tranche-2 Loans made by such Revolving Tranche-2 Lender.

“Revolving Tranche-2 Swing Line Loan” means any Swing Line Loan requested by the Borrower that at the time of such request would expire on a day later than the scheduled Maturity Date then in effect for the Revolving Tranche-1 Facility.

“Section 2.16 Additional Agreement” has the meaning specified in Section 2.16(c).

 

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“Specified Existing Revolving Credit Commitment Class” has the meaning specified in Section 2.16(a).

(b) The following definitions contained in Section 1.01 of the Credit Agreement are hereby amended and restated in their entirety to read as follows:

“Applicable Rate” means:

(a) in respect of the Dollar Term Facility, Euro Term Facility and Revolving Tranche-1 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 Revolving Tranche-1 Loans and Letter of Credit Fees				Base Rate for Revolving Tranche-1 Loans				Commitment Fee Rate				Eurocurrency Rate for Dollar Term Loans and Euro Term Loans				Base Rate for Dollar Term Loans and Euro Term Loans
1		> 5.0:1.0			2.25	%			1.25	%			0.50	%			2.25	%			1.25	%
2		< 5.0:1.0 but > 4.0:1.0			2.25	%			1.25	%			0.50	%			2.00	%			1.00	%
3		< 4.0:1.0			2.00	%			1.00	%			0.375	%			1.75	%			0.75	%

(b) in respect of the Revolving Tranche-2 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 Revolving Tranche-2 Loans and Letter of Credit Fees				Base Rate for Revolving Tranche-2 Loans				Commitment Fee Rate
1		> 5.0:1.0			3.75	%			2.75	%			0.50	%
2		< 5.0:1.0 but > 4.0:1.0			3.75	%			2.75	%			0.50	%
3		< 4.0:1.0			3.50	%			2.50	%			0.375	%

Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided that at the option of the Administrative Agent or the Required Lenders, Pricing Level 1 shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter

 

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the Pricing Level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default under Section 8.01(a) shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply).

“Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term Borrowing of a particular Class, as the context may require.

“Class” (a) when used with respect to Lenders, refers to whether such Lenders are Revolving Tranche-1 Lenders, Revolving Tranche-2 Lenders, Dollar Term Lenders, Euro Term Lenders or any Extended Lenders in respect of the same Extension Series, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Tranche-1 Commitments, Revolving Tranche-2 Commitments, Dollar Term Commitments, Euro Term Commitments or an Extended Revolving Credit Commitment (of the same Extension Series) and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Tranche-1 Loans, Revolving Tranche-2 Loans, Dollar Term Loans, Euro Term Loans or Extended Revolving Credit Loans (of the same Extension Series).

“Facility” means the Dollar Term Loans, the Euro Term Loans, the Letter of Credit Sublimit, the Revolving Tranche-1 Facility, Revolving Tranche-2 Facility and/or any Extended Revolving Credit Commitments of the same Extension Series, as the context may require.

“Letter of Credit Expiration Date” means the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for the Revolving Tranche-1 Facility (or, if such day is not a Business Day, the next preceding Business Day); provided that in the case of any Revolving Tranche-2 Letter of Credit, if the Revolving Tranche-2 Condition with respect thereto is satisfied, the Letter of Credit Expiration Date of such Letter of Credit shall be the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for the Revolving Tranche-2 Facility (or, if such day is not a Business Day, the next preceding Business Day).

“Maturity Date” means (a) with respect to the Revolving Tranche-1 Facility, the sixth anniversary of the Closing Date, (b) with respect to the Dollar Term Loans and the Euro Term Loans, the seventh anniversary of the Closing Date; (c) with respect to the Revolving Tranche-2 Facility, the earliest of (i) the ninth anniversary of the Closing Date, (ii) the 91st day prior to the maturity of the Senior Notes or any Permitted Refinancing thereof; provided such Senior Notes have an outstanding aggregate principal amount in excess of $100,000,000, (iii) the 91st day prior to the maturity of the Senior Subordinated Notes or any Permitted Refinancing thereof; provided such Senior Subordinated Notes have an outstanding aggregate principal amount in excess of $40,000,000, (iv) the 91^st day prior to the Maturity Date with respect to the Dollar Term Loans, the Euro Term Loans or the Incremental Term Loans; provided such Dollar Term Loans, Euro Term Loans and the Incremental Term Loans have an outstanding aggregate principal amount in excess of $345,000,000, (v) the 91^st day prior to the maturity of any unsecured Indebtedness for borrowed money incurred after

 

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the Amendment No. 1 Effective Date that has a scheduled maturity date earlier than the 91^st day following the ninth anniversary of the Closing Date; provided such Indebtedness for borrowed money has an outstanding aggregate principal amount in excess of $100,000,000, (vi) the sixth anniversary of the Closing Date or if later, the first day on which the event described in the proviso to this clause (vi) occurs, provided that the aggregate principal amount of the Senior Notes (or any Permitted Refinancing thereof) prepaid, repaid, redeemed, purchased, defeased or otherwise satisfied other than with proceeds of debt financing (excluding any Revolving Credit Facility) or Permitted Equity Issuance since May 25, 2011 exceeds $100,000,000, and (vii) the sixth anniversary of the Closing Date or if later, the first day on which the event described in the proviso to this clause (vii) occurs, provided that the aggregate principal amount of the Senior Subordinated Notes (or any Permitted Refinancing thereof) prepaid, repaid, redeemed, purchased, defeased or otherwise satisfied other than with proceeds of debt financing (excluding any Revolving Credit Facility) or Permitted Equity Issuance since May 25, 2011 exceeds $40,000,000; and (d) with respect to any Extension Series of Extended Revolving Credit Commitments, the maturity date related to such Extension Series. If any such day is not a Business Day, the Maturity Date shall be the Business Day immediately preceding such day.

“Revolving Credit Borrowing” means a Revolving Tranche-1 Borrowing and/or a Revolving Tranche-2 Borrowing, as the context may require.

“Revolving Credit Commitment” means a Revolving Tranche-1 Commitment and/or a Revolving Tranche-2 Commitment, as the context may require.

“Revolving Credit Facility” means the Revolving Tranche-1 Facility and/or the Revolving Tranche-2 Facility, as the context may require.

“Revolving Credit Lender” means a Revolving Tranche-1 Lender and/or a Revolving Tranche-2 Lender, as the context may require.

“Revolving Credit Loan” means a Revolving Tranche-1 Loan and/or a Revolving Tranche-2 Loan, as the context may require.

“Revolving Credit Note” means a Revolving Tranche-1 Note and/or a Revolving Tranche-2 Note, as the context may require.

(c) Section 2.01(c) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“(c)(i) The Revolving Tranche-1 Borrowings. Subject to the terms and conditions set forth herein, each Revolving Tranche-1 Lender severally agrees to make loans to the Borrower as elected by the Borrower pursuant to Section 2.02 from time to time, on any Business Day after the Closing Date until the Maturity Date with respect to the Revolving Tranche-1 Facility, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Tranche-1 Commitment; provided that, after giving effect to any Revolving Tranche-1 Borrowing, the aggregate Outstanding Amount of the Revolving Tranche-1 Loans of any Lender, plus such Revolving Tranche-1 Lender’s Pro

 

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Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Tranche-1 Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Tranche-1 Lender’s Revolving Tranche-1 Commitment. Within the limits of each Revolving Tranche-1 Lender’s Revolving Tranche-1 Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(c)(i), prepay under Section 2.05 and reborrow under this Section 2.01(c)(i). Revolving Tranche-1 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

(ii) The Revolving Tranche-2 Borrowings. Subject to the terms and conditions set forth herein, each Revolving Tranche-2 Lender severally agrees to make loans to the Borrower as elected by the Borrower pursuant to Section 2.02 from time to time, on any Business Day after the Closing Date until the Maturity Date with respect to the Revolving Tranche-2 Facility, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Tranche-2 Commitment; provided that, after giving effect to any Revolving Tranche-2 Borrowing, (x) the aggregate Outstanding Amount of the Revolving Tranche-2 Loans of any Lender, plus such Revolving Tranche-2 Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Tranche-2 Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Tranche-2 Lender’s Revolving Tranche-2 Commitment and (y) the Revolving Tranche-2 Condition shall be satisfied. Within the limits of each Revolving Tranche-2 Lender’s Revolving Tranche-2 Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(c)(ii), prepay under Section 2.05 and reborrow under this Section 2.01(c)(ii). Revolving Tranche-2 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

For the avoidance of doubt, (A) prior to Maturity Date of the Revolving Tranche-1 Facility, all borrowings of Revolving Credit Loans under this Section 2.01(c) shall be made by each Lender with a Revolving Tranche-1 Commitment and Revolving Tranche-2 Commitment pro rata based on each such Lender’s Pro Rata Share without regard to the Class of the Revolving Credit Commitments held by such Lender, provided that if such pro rata allocation in respect of any borrowing cannot be made solely because the Revolving Tranche-2 Condition with respect thereto is not satisfied, the amount of such borrowing shall be reduced to the extent necessary so that the Revolving Tranche-2 Condition with respect thereto is satisfied in order to achieve such pro rata allocation and (B) (i) the Pro Rata Share of each Revolving Credit Loan and each Revolving Credit Commitment of a Revolving Tranche-2 Lender shall be treated for all purposes of this Agreement as a Revolving Tranche-2 Loan and a Revolving Tranche-2 Commitment, respectively, and (ii) the Pro Rata Share of each Revolving Credit Loan and each Revolving Credit Commitment of a Revolving Tranche-1 Lender shall be treated for all purposes of this Agreement as a Revolving Tranche-1 Loan and a Revolving Tranche-1 Commitment, respectively.”.

(d) Clause (i) in the sixth sentence of Section 2.02(a) of the Credit Agreement is hereby amended and restated in its entirety to read: “(i) whether the Borrower is requesting a Dollar Term Borrowing, a Euro Term Borrowing, a Revolving Tranche-1 Borrowing, a Revolving Tranche-2 Borrowing, a conversion of Dollar Term Loans, Euro Term Loans, Revolving Tranche-1 Loans or Revolving Tranche-2 Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans,”.

 

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(e) Section 2.02 of the Credit Agreement is hereby amended by adding at the end thereof a new clause (h) to read as follows:

“(h) Notwithstanding anything to the contrary, with respect to the conversions of Revolving Credit Loans into Revolving Tranche-1 Loans and Revolving Tranche-2 Loans pursuant to Section 2.15 (A) no Committed Loan Notice shall be required to effect any such conversion and no actual transfer of funds shall be made and (B) in the case of any Eurocurrency Rate Loans existing immediately prior to the Amendment No. 1 Effective Date, such Eurocurrency Rate Loans shall be deemed to have continued as an Eurocurrency Rate Loans notwithstanding such conversion, and to the extent such conversion occurs during the middle of an Interest Period with respect to any such existing Eurocurrency Rate Loans, the continuing Eurocurrency Rate Loans that are Revolving Tranche-1 Loans or Revolving Tranche-2 Loans shall be allocated ratably to the same Interest Period or Interest Periods as such existing Eurocurrency Rate Loans that are Revolving Credit Loans and shall be deemed to bear interest at the same Eurocurrency Rate or Eurocurrency Rates then in effect for such existing Eurocurrency Rate Loans that are Revolving Credit Loans plus the Applicable Rate in effect for such Revolving Tranche-1 Loans or Revolving Tranche-2 Loans, as applicable, for the remainder of such Interest Periods.”.

(f) The first sentence of Section 2.03(a)(i) of the Credit Agreement is hereby amended by deleting the word “or” immediately before clause (y) in the proviso thereto and by inserting the words “, or (z) the Revolving Tranche-2 Condition would not be satisfied” immediately preceding the period at the end thereof.

(g) Section 2.03(a)(ii)(C) of the Credit Agreement is hereby amended by replacing the words “all the Revolving Credit Lenders” therein with the words “all the applicable Revolving Credit Lenders”.

(h) Section 2.03(b)(ii) of the Credit Agreement is hereby amended by:

(i) replacing each reference to “Pro Rata Share” in the last sentence thereof with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”; and

(ii) inserting the following proviso immediately preceding the period at the end of the last sentence thereof:

“; provided, that effective upon the occurrence of the Maturity Date in respect of the Revolving Tranche-1 Facility, subject to the satisfaction of the Revolving Tranche-2 Condition, the value of the participations of Revolving Tranche-1 Lenders hereunder shall be automatically reallocated, without further action by any party hereto, to the Revolving Tranche-2 Lenders on a pro rata basis, and each such Revolving Tranche-2 Lender shall be deemed, without further action by any party hereto, to have purchased from the relevant L/C Issuer a participation in such L/C Obligations in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such L/C Obligations”.

(i) The third sentence of Section 2.03(c)(i) of the Credit Agreement is hereby amended by replacing the reference to “Pro Rata Share” therein with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”.

 

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(j) The first sentence of Section 2.03(c)(ii) of the Credit Agreement is hereby amended by replacing the reference to “Pro Rata Share” therein with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”.

(k) Section 2.03(c)(iv) of the Credit Agreement is hereby amended by replacing the reference to “Pro Rata Share” therein with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”.

(l) Section 2.03(c)(vii) of the Credit Agreement is hereby amended by replacing the reference to “Pro Rata Share” therein with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”.

(m) Section 2.03(c)(viii) of the Credit Agreement is hereby amended by replacing the reference to “Pro Rata Share” therein with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”.

(n) The first sentence of Section 2.03(g) of the Credit Agreement is hereby amended by replacing the reference to “Pro Rata Share” therein with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”.

(o) Section 2.03 of the Credit Agreement is hereby amended by adding at the end thereof a new subsection (k) to read as follows:

“(k) Cash Collateral At Maturity, Etc. (i) If the Maturity Date with respect to the Revolving Tranche-2 Facility is on or later than the Maturity Date with respect to the Revolving Tranche-1 Facility, and if on the Maturity Date with respect to the Revolving Tranche-2 Facility, there are any outstanding L/C Obligations, then the Borrower shall Cash Collateralize the then Outstanding Amount of all such L/C Obligations (or make such other arrangements as shall be reasonably satisfactory to the relevant L/C Issuer and the Revolving Tranche-2 Lenders) on such Maturity Date (or, if such day is not a Business Day, the Business Day immediately succeeding such day).

(ii) If the Maturity Date with respect to the Revolving Tranche-2 Facility is prior to the Maturity Date with respect to the Revolving Tranche-1 Facility, and if on the Maturity Date with respect to the Revolving Tranche-2 Facility, there are any outstanding L/C Obligations with respect to Revolving Tranche-2 Letters of Credit, then the Borrower shall Cash Collateralize (or make such other arrangements as shall be reasonably satisfactory to the relevant L/C Issuer and the Revolving Credit Lenders) the then Outstanding Amount of all such L/C Obligations on such Maturity Date (or, if such day is not a Business Day, the Business Day immediately succeeding such day).

(iii) If the Maturity Date with respect to the Revolving Tranche-2 Facility is prior to the Maturity Date with respect to the Revolving Tranche-1 Facility, and if on the Maturity Date with respect to the Revolving Tranche-2 Facility, there are any outstanding L/C Obligations with respect to Letters of Credit (other than Revolving Tranche-2 Letters of Credit), then effective upon the Maturity Date with respect to the Revolving Tranche-2 Facility, the value of the participations of Revolving Tranche-2 Lenders hereunder with respect to such Letters of Credit shall be automatically reallocated, without further action by any party thereto, to the Revolving Tranche-1 Lenders on a pro rata basis, and each such Revolving Tranche-1 Lender shall be deemed, without further action by any party hereto, to have purchased from the relevant L/C Issuer a participation in such L/C

 

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Obligations in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such L/C Obligations; provided that if after giving effect to such reallocation, any Revolving Tranche-1 Lender’s Pro Rata Share (calculated as if Revolving Tranche-2 Lenders’ Pro Rata Share of the risk participation in respect of any such Letter of Credit is zero) of the Outstanding Amount of all L/C Obligations, plus such Revolving Tranche-1 Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans, plus the Outstanding Amount of such Revolving Tranche-1 Lender’s Revolving Tranche-1 Loans, would exceed such Revolving Tranche-1 Lenders’ Revolving Tranche-1 Commitment, then the Borrower shall Cash Collateralize (or make such other arrangements as shall be reasonably satisfactory to the relevant L/C Issuer and the Revolving Tranche-1 Lenders) such excess amount of all such L/C Obligations on such Maturity Date (or, if such day is not a Business Day, the Business Day immediately succeeding such day), and such reallocation shall only apply to such L/C Obligations less such excess amount.”

(p) Section 2.04(a) of the Credit Agreement is hereby amended by:

(i) replacing each reference to “Pro Rata Share” therein with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”;

(ii) inserting the words “, and the Revolving Tranche-2 Condition shall be satisfied” immediately preceding “; provided further” in the first sentence thereof; and

(iii) inserting the following proviso immediately preceding the period at the end of the last sentence thereof:

“; provided, that effective upon the occurrence of the Maturity Date in respect of the Revolving Tranche-1 Facility, subject to the satisfaction of the Revolving Tranche-2 Condition, the value of the participations of Revolving Tranche-1 Lenders hereunder shall be automatically reallocated, without further action by any party hereto, to the Revolving Tranche-2 Lenders on a pro rata basis, and each such Revolving Tranche-2 Lender shall be deemed, without further action by any party hereto, to have purchased from the Swing Line Lender a participation in such Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Swing Line Loan.”.

(q) Section 2.04(c)(i) of the Credit Agreement is hereby amended by replacing each reference to “Pro Rata Share” therein with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”.

(r) Section 2.04(c)(ii) of the Credit Agreement is hereby amended by inserting the following proviso immediately preceding the period at the end thereof:

“; provided that effective upon the occurrence of the Maturity Date in respect of the Revolving Tranche-1 Facility, subject to the satisfaction of the Revolving Tranche-2 Condition, the risk participations of the Revolving Tranche-1 Lenders funded pursuant to this Section 2.04(c)(ii) shall be automatically reallocated, without further action by any party hereto, to the Revolving Tranche-2 Lenders on a pro rata basis, and each such Revolving Tranche-2 Lender shall be deemed, without further action by any party hereto, to have purchased from the Swing Line Lender a risk participation in such Swing Line Loan in an amount for each Revolving Tranche-2 Lender equal to such Revolving

 

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Tranche-2 Lender’s Pro Rata Share (based on its Revolving Tranche-2 Commitment) of the amount of such Swing Line Loan.”.

(s) Section 2.04(d) of the Credit Agreement is hereby amended by replacing each reference to “Pro Rata Share” therein with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”.

(t) Section 2.04(e) of the Credit Agreement is hereby amended by replacing each reference to “Pro Rata Share” therein with “Pro Rata Share (regardless of the Class of Revolving Credit Commitments held by such Lender)”.

(u) Section 2.05(b)(iv) of the Credit Agreement is hereby amended by inserting the following new sentence at the end thereof:

“Each such prepayment shall be paid to the Revolving Credit Lenders in accordance with their respective Pro Rata Shares (regardless of the Class of Revolving Credit Commitments held by any such Revolving Credit Lender).”.

(v) Section 2.06 of the Credit Agreement is hereby amended by adding the following new clause (d):

“(d) Extended Revolving Credit Commitments. In connection with the establishment on any date of any Extended Revolving Credit Commitments pursuant to Section 2.16, the Revolving Credit Commitments in respect of the applicable Specified Existing Revolving Credit Commitment Class of any one or more Lenders providing any such Extended Revolving Credit Commitments on such date shall be reduced in an amount at least equal to the amount of Revolving Credit Commitments so extended on such date (provided that (x) after giving effect to any such reduction and to the repayment of any Revolving Credit Loans made on such date, the Revolving Credit Exposure of any such Lender does not exceed the Revolving Credit Commitment thereof (such Revolving Credit Exposure and Revolving Credit Commitment being determined in each case, for the avoidance of doubt, exclusive of such Lender’s Extended Revolving Credit Commitment and any exposure in respect thereof), (y) such reduction of the Revolving Credit Commitments in respect of the applicable Specified Existing Revolving Credit Commitment Class may be made on a non-pro rata basis among the Lenders providing such Extended Revolving Credit Commitments and (z) for the avoidance of doubt, any such repayment of Revolving Credit Loans contemplated by the preceding clause (x) shall be made in compliance with the requirements of Section 2.13 with respect to the ratable allocation 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).”.

(w) Section 2.07(c) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“The Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders (i) for the Revolving Tranche-1 Facility, on the Maturity Date with respect to the Revolving Tranche-1 Facility, the aggregate principal amount of all of its

 

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Revolving Tranche-1 Loans outstanding on such date and (ii) for the Revolving Tranche-2 Facility, on the Maturity Date with respect to the Revolving Tranche-2 Facility, the aggregate principal amount of all of its Revolving Tranche-2 Loans outstanding on such date. For the avoidance of doubt, prior to the Maturity Date of the Revolving Tranche-1 Facility, each prepayment or repayment of the Revolving Credit Loans held by the Revolving Credit Lenders shall be applied in accordance with their respective Pro Rata Shares (regardless of the Class of Revolving Credit Commitments held by any Revolving Credit Lender), provided that on the Maturity Date of the Revolving Tranche-1 Facility, a repayment of the Revolving Tranche-1 Loans may be made without a ratable prepayment or repayment of the Revolving Tranche-2 Loans or any other Class of Revolving Credit Loans that have a later maturity date.”.

(x) Section 2.07(d) of the Credit Agreement is hereby amended by amending and restating clause (ii) thereof in its entirety to read as follows:

“(ii) the Maturity Date for the Revolving Tranche-1 Facility; provided that in the case of any Revolving Tranche-2 Swing Line Loan, if the Revolving Tranche-2 Condition with respect thereto is satisfied, the date of this clause (ii) shall be deemed to be the scheduled Maturity Date then in effect for the Revolving Tranche-2 Facility”.

(y) Section 2.07 of the Credit Agreement is hereby amended by adding new clause (f) thereto to read as follows:

“(f) The Borrower shall repay on the relevant maturity date for any other Extension Series of Extended Revolving Credit Commitments, all then outstanding Extended Revolving Credit Loans of such Extension Series.

(z) Section 2.09(a) of the Credit Agreement is hereby amended by amending and restating the second sentence thereof in its entirety as follows:

“The commitment fees shall accrue at all times from the Closing Date or the effective date of the relevant Extension Agreement, as applicable, until the Maturity Date for each Revolving Credit Facility, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date or the effective date of the relevant Extension Agreement, as applicable, and on the Maturity Date for each Revolving Credit Facility.”.

(aa) New Sections 2.15 and 2.16 of the Credit Agreement are hereby added after the end of Section 2.14 thereof to read as follows:

“2.15. Conversion of Revolving Credit Loans, etc. (a) Each Revolving Credit Lender who has executed and delivered to the Administrative Agent a counterpart to Amendment No. 1 as an “Extending and Consenting Lender” immediately prior to giving effect to Amendment No. 1 shall be deemed, upon the effectiveness of Amendment No. 1, to have converted (i) all or a portion of its Revolving Credit Commitment into a Revolving Tranche-2 Commitment, in the aggregate amount set forth (A) on such Lender’s signature page thereto and (B) opposite such Lender’s name on Schedule 2.01(c) under the caption “Revolving Tranche-2 Commitment” and (ii) its outstanding Revolving Credit Loans into Revolving Tranche-2 Loans in a percentage equal to the percentage of

 

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such Revolving Credit Lender’s Revolving Credit Commitment that will be converted to Revolving Tranche-2 Commitments upon the effectiveness of Amendment No. 1.

(b) Each Revolving Credit Lender who has not converted all of its Revolving Credit Commitment and Revolving Credit Loans into a Revolving Tranche-2 Commitment and Revolving Tranche-2 Loans pursuant to Section 2.15(a) on or prior to the Amendment No. 1 Effective Date, shall be deemed, upon the effectiveness of Amendment No. 1, to have converted (i) all or a portion of its Revolving Credit Commitment into a Revolving Tranche-1 Commitment, in the aggregate amount set forth opposite such Lender’s name on Schedule 2.01(c) under the caption “Revolving Tranche-1 Commitment” and (ii) its outstanding Revolving Credit Loans into Revolving Tranche-1 Loans in a percentage equal to the percentage of such Revolving Credit Lender’s Revolving Credit Commitment that will be converted to Revolving Tranche-1 Commitments upon the Amendment No. 1 Effective Date.

(c) On the Amendment No. 1 Effective Date, (i) with respect to each Letter of Credit issued hereunder prior to such date, each Revolving Tranche-1 Lender and each Revolving Tranche-2 Lender shall be deemed to have purchased from the L/C Issuer a participation therein (including any L/C Borrowing with respect thereto) in accordance with Section 2.03(b) and (ii) with respect to each Swing Line Loan made hereunder prior to such date, each Revolving Tranche-1 Lender and each Revolving Tranche-2 Lender shall be deemed to have purchased from the Swing Line Lender a risk participation therein in accordance with Section 2.04(a) and Section 2.04(c)(ii).

2.16 Extensions of Revolving Credit Loans and Revolving Credit Commitments

(a) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments and any previous extension of Extended Revolving Credit Commitments existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related Revolving Credit Loans under any such facility, “Existing Revolving Credit Loans”) be exchanged to extend the termination date thereof with respect to all or a portion of any principal amount thereof (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Revolving Credit Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.16. Prior to entering into any Extension Agreement with respect to any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established thereunder, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment Class”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class, (y) the all-in pricing (including, without limitation, margins, fees and premiums) with respect to the Extended Revolving Credit Commitments may be higher or lower than the all-in pricing (including, without limitation, margins, fees and premiums) for the Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments

 

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may be higher or lower than the revolving credit commitment fee rate for Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class, in each case, to the extent provided in the applicable Extension Agreement; provided that, notwithstanding anything to the contrary in this Section 2.16 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Extended Revolving Credit Loans under any Extended Revolving Credit Commitments shall be made on a pro rata basis with any borrowings and repayments of the Existing Revolving Credit Loans (the mechanics for which may be implemented through the applicable Extension Agreement and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Facility), (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the assignment and participation provisions set forth in Section 10.07 and (3) no termination of Extended Revolving Credit Commitments and no repayment of Extended Revolving Credit Loans accompanied by a corresponding permanent reduction in Extended Revolving Credit Commitments shall be permitted unless such termination or repayment (and corresponding reduction) is accompanied by at least a pro rata termination or permanent repayment (and corresponding pro rata permanent reduction), as applicable, of the Existing Revolving Credit Loans and Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class (or all Existing Revolving Credit Commitments of such Class and related Existing Revolving Credit Loans shall have otherwise been terminated and repaid in full). Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date); provided that any Extended Revolving Credit Commitments or Extended Revolving Credit Loans extended may, to the extent provided in the applicable Extension Agreement, be designated as an increase to any previously established Extension Series of Extended Revolving Credit Commitments; provided, further that in no event shall there be more than six Classes of revolving credit commitments outstanding at any one time.

(b) Except as contemplated by the penultimate sentence of this Section 2.16(b), the Borrower shall provide a Revolving Credit Extension Request at least five (5) Business Days prior to the date on which Lenders under the Existing Class are requested to respond. Except as contemplated by the penultimate sentence of this Section 2.16(b), any Lender (an “Extending Lender”) wishing to have all or a portion of its Revolving Credit Commitments (or any earlier extended Extended Revolving Credit Commitments) of an Existing Class subject to such Revolving Credit Extension Request exchanged into Extended Revolving Credit Commitments shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Revolving Credit Extension Request of the amount of its Revolving Credit Commitments (and/or any earlier extended Extended Revolving Credit Commitments) which it has elected to convert into Extended Revolving Credit Commitments. In the event that the aggregate amount of Revolving Credit Commitments (and any earlier extended Extended Revolving Credit Commitments) subject to Extension Elections exceeds the amount of Extended Revolving Credit Commitments requested pursuant to the Revolving Credit Extension Request, Revolving Credit Commitments (and any earlier extended Extended Revolving Credit Commitments) subject to Extension Elections shall be exchanged to Extended Revolving Credit Commitments on a pro rata basis based on the amount of Revolving

 

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Credit Commitments (and any earlier extended Extended Revolving Credit Commitments) included in each such Extension Election. Notwithstanding the foregoing, the Borrower shall be permitted to specify in the Revolving Credit Extension Request, any Lender or Lenders as Extending Lenders (subject to the consent of such Lender or Lenders) and any Lenders not so specified in such Revolving Credit Extension Request shall not have the right to make an Extension Election with respect to such Revolving Credit Extension Request. Notwithstanding the conversion of any Existing Revolving Credit Commitment into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class for purposes of the obligations of a Revolving Credit Lender in respect of Swing Line Loans under Section 2.04 and Letters of Credit under Section 2.03, except that the applicable Extension Agreement may provide that the Swing Line maturity date and/or the last day for issuing Letters of Credit may be extended and the related obligations to make Swing Line Loans and issue Letters of Credit may be continued and/or modified (pursuant to mechanics set forth in the applicable Extension Agreement) so long as the Swing Line Lender and/or the applicable L/C Issuer, as applicable, have consented to such extensions (it being understood that no consent of any other Lender shall be required in connection with any such extension).

(c) Extended Revolving Credit Commitments shall be established pursuant to an amendment (an “Extension Agreement”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.16(c) and notwithstanding anything to the contrary set forth in Section 10.01, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Revolving Credit Commitments established thereby) executed by the Loan Parties, the Administrative Agent and the Extending Lenders. Notwithstanding anything to the contrary in this Section 2.16 and without limiting the generality or applicability of Section 10.01 to any Section 2.16 Additional Agreements, any Extension Agreement may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.16 Additional Agreement”) to this Agreement and the other Loan Documents; provided that such Section 2.16 Additional Agreements do not become effective prior to the time that such Section 2.16 Additional Agreements have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of Revolving Commitment Increases provided for in any Incremental Amendment and (2) consents applicable to holders of any Extended Revolving Credit Commitments provided for in any Extension Agreement) by such of the Lenders, Loan Parties and other parties (if any) as may be required in order for such Section 2.16 Additional Agreements to become effective in accordance with Section 10.01. It is understood and agreed that each Lender that has consented to this Agreement has consented and shall at the effective time thereof be deemed to consent to each amendment in this Agreement and the other Loan Documents authorized by this Section 2.16 and the arrangements described above in connection therewith except that the foregoing shall not constitute a consent on behalf of any Lender to the terms of any Section 2.16 Additional Agreement. In connection with any Extension Agreement, the Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent (i) as to the enforceability of such Extension Agreement, the Credit Agreement as amended thereby, and such of the other Loan Documents (if any) as may be amended thereby (in the case of such other Loan Documents as contemplated by the immediately preceding sentence) and (ii) to the effect that such Extension Agreement, including without limitation, the Extended Revolving

 

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Credit Commitments provided for therein, does not conflict with or violate the terms and provisions of Section 10.01 of this Agreement.

(d) This Section 2.16 supersedes any provision in Section 2.13 or Section 10.01 to the contrary.

(bb) Schedule 2.01(c) to the Credit Agreement is hereby deleted in its entirety and replaced with Schedule 2.01(c), respectively, to this Amendment.

(cc) Exhibit A to the Credit Agreement is hereby deleted in its entirety and replaced with Exhibit A to this Amendment.

(dd) Exhibit C-3 to the Credit Agreement is hereby deleted in its entirety and replaced with Exhibit C-3 to this Amendment.

SECTION 2. Conditions of Effectiveness to Amendment No. 1. Section 1 of this Amendment shall become effective on the date (the “Amendment No. 1 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 Required Lenders or, as to any of the 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 shall have received a certificate of the Borrower dated as of the Amendment No. 1 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. 1 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. 1 Effective Date.

(d) The Administrative Agent shall have received certified copies of the resolutions of the Board of Directors of the Borrower approving this Amendment and the matters contemplated hereby.

(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. 1 Effective Date, a Revolving Credit Note payable to the order of such Lender duly executed by the Borrower in substantially the form of Exhibit C-3 to the Credit Agreement, as applicable, in each case as modified by this Amendment.

 

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(g) Each Lender that executes a counterpart to this Amendment as a “Consenting Lender” or an “Extending and Consenting Lender” on or before noon, New York City time, on May 26, 2011 shall have been paid an amendment fee in an amount equal to 0.05% of the sum of such Lender’s Revolving Credit Commitment and outstanding Term Loans as of such date.

(h) Each Revolving Credit Lender that executes a counterpart to this Amendment as an “Extending and Consenting Lender” on or before noon, New York City time, on May 26, 2011 shall have been paid an additional extension fee in an amount equal to 2% of such Lender’s Revolving Credit Commitment that is being converted into Revolving Tranche-2 Commitments as of such date.

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

 

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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 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]

 

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SIGNATURE

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.

 

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Schedule 2.01(c)

 

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Exhibit A

FORM OF

COMMITTED LOAN NOTICE

 

To:		Morgan Stanley Senior Funding, Inc., as Administrative Agent One Pierrepont Plaza, 7th Floor 300 Cadman Plaza West Brooklyn, New York 11201

 

Attention:		Administrative Agent Team,
		Loan Administration
Fax:		212 ###-###-####

[Date]

Ladies and Gentlemen:

Reference is made to the Credit Agreement dated as of April 10, 2007 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CATALENT PHARMA SOLUTIONS, INC., PTS INTERMEDIATE HOLDINGS LLC, Morgan Stanley Senior Funding, Inc., as Administrative Agent, Collateral Agent and Swing Line Lender, Bank of America, N.A., as L/C Issuer and the Lenders from time to time party thereto. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.

The Borrower hereby requests (select one):

 

[    ]		A Borrowing of new Loans
[    ]		A conversion of Loans
[    ]		A continuation of Loans

to be made on the terms set forth below:

 

(A)		Class of Borrowing1
(B)		Date of Borrowing, conversion or continuation (which is a Business Day)
(C)		Principal amount
(D)		Type of Loan2
(E)		Interest Period3

 

1	Euro Term Borrowing, Dollar Term Borrowing, Revolving Tranche-1 Borrowing or Revolving Tranche-2 Borrowing.

2	Specify Eurocurrency Rate Loan or Base Rate Loan.

3	Applicable for Eurocurrency Rate Loans only.

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(F)		Currency of Loan1

The above request has been made to the Administrative Agent by telephone at ###-###-#### / 7435.

[Remainder of Page Intentionally Blank]

 

 

1	Applicable for Term Loans only.

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[The Borrower hereby represents and warrants to the Administrative Agent and the Lenders that, on the date of this Committed Loan Notice and on the date of the related Borrowing, the conditions to lending specified in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement have been satisfied.]¹

 

 

1	Insert bracketed language if the Borrower is requesting a Borrowing of new Loans.

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Exhibit C-3

LENDER: [                    ]

PRINCIPAL AMOUNT: $[                    ]

FORM OF

REVOLVING CREDIT NOTE

New York, New York

[Date]

FOR VALUE RECEIVED, the undersigned, CATALENT PHARMA SOLUTIONS, INC., a Delaware corporation (the “Borrower”), hereby promises to pay to the Lender set forth above (the “Lender”) or its registered assigns, in immediately available funds at the Administrative Agent’s Office (such term, and each other capitalized term used but not defined herein, having the meaning assigned to it in the Credit Agreement dated as of April 10, 2007 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CATALENT PHARMA SOLUTIONS, INC., PTS INTERMEDIATE HOLDINGS LLC, Morgan Stanley Senior Funding, Inc., as Administrative Agent, Collateral Agent and Swing Line Lender, Bank of America, N.A., as L/C Issuer, the Lender and the other lenders from time to time party thereto, (A) on the dates set forth in the Credit Agreement, the lesser of (i) the principal amount set forth above and (ii) the aggregate unpaid principal amount of all Revolving Tranche-[1][2] Loans made by the Lender to the Borrower pursuant to the Credit Agreement, and (B) interest from the date hereof on the principal amount from time to time outstanding on each such Revolving Tranche-[1][2] Loan at the rate or rates per annum and payable on such dates as provided in the Credit Agreement in lawful money of the United States of America.

The Borrower promises to pay interest, on demand, on any overdue principal and, to the extent permitted by law, overdue interest from their due dates at a rate or rates provided in the Credit Agreement.

The Borrower hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever. The nonexercise by the holder hereof of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or any subsequent instance.

All borrowings evidenced by this note and all payments and prepayments of the principal hereof and interest hereon and the respective dates thereof shall be endorsed by the holder hereof on the schedule attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided, however, that the failure of the holder hereof to make such a notation or any error in such notation shall not affect the obligations of the Borrower under this note.

This note is one of the Revolving Credit Notes referred to in the Credit Agreement that, among other things, contains provisions for the acceleration of the maturity hereof upon the happening of certain events, for optional and mandatory prepayment of the principal hereof prior to the maturity hereof and for the amendment or waiver of certain provisions of the Credit Agreement, all upon the terms and conditions therein specified.

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THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.