EXHIBIT 10.4
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “Amendment”) dated as of May 1, 2007, is entered into among GSC INVESTMENT FUNDING LLC, as the Borrower, DEUTSCHE BANK AG, NEW YORK BRANCH (“Deutsche Bank”), as Committed Lender (the “Committed Lender”), Deutsche Bank as Managing Agent (in such capacity, the “Managing Agent”) and Deutsche Bank as Administrative Agent (in such capacity, the “Administrative Agent”). Capitalized terms used herein without definition shall have the meanings ascribed thereto in the “Credit Agreement” referred to below.
PRELIMINARY STATEMENTS
A. Reference is made to that certain Credit Agreement dated as of April 11, 2007 among the Borrower, GSCP (NJ), L.P., as the Servicer, GSC Investment Corp., as the Performance Guarantor, the CP Lenders, the Committed Lenders, the Managing Agents and the Administrative Agent (as amended, modified or supplemented from time to time, the “Credit Agreement”).
B. The parties hereto have agreed to amend certain provisions of the Credit Agreement upon the terms and conditions set forth herein.
SECTION 1. Amendment. Subject to the satisfaction of the conditions set forth in Section 3 hereof, the parties hereto hereby agree:
(i) to amend Section 8.1 to delete clauses (f) and (i) in their entirety and substitute the following therefor:
(f) (i) a final non-appealable judgment for the payment of money shall have been rendered in an amount in excess of (A) $5,000,000 against the Originator or any of its material subsidiaries (which, for avoidance of doubt, shall include any special purpose entity subsidiary created to facilitate a structured finance transaction) or (B) $100,000 against the Borrower by a court of competent jurisdiction and, if such judgment relates to the Originator or any of its material subsidiaries, such judgment, decree or order shall continue unsatisfied and in effect for any period of thirty (30) consecutive days without a stay of execution, or (ii) the Originator, the Originator’s material subsidiaries or the Borrower, as the case may be, shall have made payments of amounts in excess of $5,000,000 or $50,000, respectively, in settlement of any litigation; or
(i) the Borrower, the Originator or any of the Originator’s material subsidiaries (which, for avoidance of doubt, shall include any special purpose entity subsidiary
created to facilitate a structured finance transaction) defaults under any material agreement for borrowed money to which either is a party and which, in the case of the Originator and its material subsidiaries only, shall evidence Indebtedness in excess of $5,000,000, and such default is not cured within the relevant cure period (other than, in the case of the Originator and its material subsidiaries, a default occurring under Section 8.1(m) or (n) of that certain Credit Agreement dated as of May 1, 2007 by and among, inter alia, GSC Investment Funding II, the commercial paper conduits and financial institutions from time to time party thereto as lenders, and Deutsche Bank AG, New York Branch as Administrative Agent), or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
SECTION 2. Representations and Warranties. The Borrower hereby represents and warrants to each of the other parties hereto, that:
(a) this Amendment constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms; and
(b) on the date hereof, before and after giving effect to this Amendment, other than as amended or waived pursuant to this Amendment, no Default or Event of Default has occurred and is continuing.
SECTION 3. Conditions. This Amendment shall become effective on the first Business Day (the “Effective Date”) on which the Administrative Agent or its counsel has received counterpart signature pages of this Amendment, executed by each of the parties hereto.
SECTION 4. Reference to and Effect on the Transaction Documents.
(a) Upon the effectiveness of this Amendment, (i) each reference in the Credit Agreement to “this Credit Agreement”, “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import shall mean and be a reference to the Credit Agreement as amended or otherwise modified hereby, and (ii) each reference to the Credit Agreement in any other Transaction Document or any other document, instrument or agreement executed and/or delivered in connection therewith, shall mean and be a reference to the Credit Agreement as amended or otherwise modified hereby.
(b) Except as specifically amended, terminated or otherwise modified above, the terms and conditions of the Credit Agreement, of all other Transaction Documents and any other documents, instruments and agreements executed and/or delivered in connection therewith, shall remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent, any Managing Agent or any Lender under the Credit Agreement or any other Transaction Document or any other document, instrument or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein, in each case except as specifically set forth herein.
SECTION 5. 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 and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 6. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 7. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
SECTION 8. Fees and Expenses. Borrower hereby confirms its agreement to pay on demand all reasonable costs and expenses of the Administrative Agent, Managing Agents or Lenders in connection with the preparation, execution and delivery of this Amendment and any of the other instruments, documents and agreements to be executed and/or delivered in connection herewith, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel to the Administrative Agent, Managing Agents or Lenders with respect thereto.
[Remainder of Page Deliberately Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective officers as of the date first above written.
| | GSC INVESTMENT FUNDING LLC |
| | | | |
| | By: | /s/ Thomas V. Inglesby |
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| | | Name: | Thomas V. Inglesby |
| | | Title: | President |
Signature Page to Amendment No. 1
| | DEUTSCHE BANK AG, NEW YORK
BRANCH, as a Committed Lender,
Managing Agent and Administrative
Agent |
| | | | |
| | By: | /s/ Daniel Pietrzak |
| | |
|
| | | Name: | Daniel Pietrzak |
| | | Title: | Director |
| | | | |
| | By: | /s/ Peter Chuang |
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| | | Name: | Peter Chuang |
| | | Title: | Vice President |
Signature Page to Amendment No. 1
The undersigned acknowledges its receipt of a copy of Amendment No. 1 to Credit Agreement as of the date hereof. The undersigned (i) reaffirms all of its obligations under Section 12.14 of the Credit Agreement and (ii) acknowledges and agrees that the performance undertaking thereunder remains in full force and effect (including, without limitation, after giving effect to the amendment of the Credit Agreement as of the date hereof).
| GSC INVESTMENT CORP. |
| | | | |
| | By: | /s/ Thomas V. Inglesby |
| | |
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| | | Name: | Thomas V. Inglesby |
| | | Title: | Chief Executive Officer |
Signature Page to Amendment No. 1
