EX-10.1 2 tm2325098d1_ex10-1.htm EXHIBIT 10.1

Exhibit 10.1

Execution Version

AMENDMENT NO. 7 TO CREDIT AGREEMENT

AMENDMENT NO. 7 TO CREDIT AGREEMENT, dated as of August 31, 2023 (this “Amendment”), among BRIGHTVIEW HOLDINGS, INC. (f/k/a GARDEN ACQUISITION HOLDINGS, INC.) (“Holdings”), BRIGHTVIEW LANDSCAPES, LLC (f/k/a The Brickman Group Ltd. LLC), a Delaware limited liability company (the “Borrower”), each of the other Credit Parties party hereto, each of the lenders and letter of credit issuers that is a signatory hereto (the “Required Lenders”) and JPMORGAN CHASE BANK, N.A. (in its individual capacity, “JPMorgan”), as Administrative Agent (the “Administrative Agent”), Collateral Agent, Swingline Lender and a Letter of Credit Issuer.

W I T N E S S E T H:

WHEREAS, the Borrower, Holdings, JPMorgan, as the administrative agent and collateral agent, and each lender from time to time party thereto (the “Lenders”) have entered into a Credit Agreement, dated as of December 18, 2013, (as amended, restated and amended and restated 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);

WHEREAS, Holdings intends to enter into that Investment Agreement, dated August 28, 2023 (the “Investor Agreement”), among Holdings, Birch Equity Holdings, LP (“Birch Holdings”) and Birch-OR Equity Holdings, LLC (“Birch-OR” and together with Birch Holdings, “Birch Equity”) pursuant to which Birch Equity shall become an owner of Holdings;

WHEREAS, upon the closing of the Investor Agreement, the Borrower shall repay $450,000,000 of Term Loans;

WHEREAS, the Borrower, Holdings, the Administrative Agent, each Lender party hereto desires to amend the Credit Agreement;

WHEREAS, the Administrative Agent, the Borrower, Holdings and the Lenders signatory hereto are willing to so agree pursuant to Section 13.1 of the Credit Agreement, subject to the conditions set forth herein;

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

SECTION 1. Amendment. Effective as of the Amendment Effective Date (as defined below), and subject to the terms and conditions set forth herein, the Credit Agreement is hereby amended as follows (the Credit Agreement, as so amended, being referred to as the “Amended Credit Agreement”):

(a) Each of the following defined terms are hereby added to Section 1.1 of the Credit Agreement in the proper alphabetical order.

“Seventh Amendment” shall mean that certain Amendment No. 7 to Credit Agreement, dated as of the Seventh Amendment Effective Date, to this Agreement.

“Seventh Amendment Effective Date” shall mean August 31, 2023.

(b) The definition of “Permitted Holders” in Section 1.1 of the Credit Agreement shall be amended and restated in its entirety as follows:

“Permitted Holders” shall mean each of (i) the Initial Investors and their respective Affiliates (other than any portfolio company of an Initial Investor), Birch Equity Holdings, LP, Birch-OR Equity Holdings, LLC and One Rock Capital Partners, LLC and their respective Affiliates and members of management of Holdings or the Borrower (or their respective direct or indirect parent company or management vehicle) and their respective Permitted Transferees who are holders of Equity Interests of Holdings (or its direct or indirect parent company or management vehicle) on the Seventh Amendment Effective Date and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving effect to the existence of such group or any other group, such Initial Investors, their respective Affiliates and members of management, collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of Holdings or any other direct or indirect Parent Entity, (ii) any direct or indirect Parent Entity formed not in connection with, or in contemplation of, a transaction (other than Transactions) that, assuming such parent was not formed, after giving effect thereto would constitute a Change of Control and (iii) any entity (other than a Parent Entity) through which a Parent Entity described in clause (ii) directly or indirectly holds Equity Interests of the Borrower and has no other material operations other than those incidental thereto.

“(b) In the event that, on or prior to the six-month anniversary of the Seventh Amendment Effective Date, the Borrower (i) makes any prepayment of Initial Term Loans in connection with any Repricing Transaction the primary purpose of which is to decrease the Effective Yield on such Initial Term Loans or (ii) effects any amendment of this Agreement resulting in a Repricing Transaction the primary purpose of which is to decrease the Effective Yield on the Initial Term Loans, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders, (x) in the case of clause (i), a prepayment premium of 1.00% of the principal amount of the Initial Term Loans being prepaid in connection with such Repricing Transaction and (y) in the case of clause (ii), an amount equal to 1.00% of the aggregate amount of the applicable Initial Term Loans outstanding immediately prior to such amendment that are subject to an effective pricing reduction pursuant to such Repricing Transaction.”

SECTION 2. Conditions of Effectiveness.

This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment Effective Date”) when each of the following conditions shall have been satisfied:

(a) the Administrative Agent (or its counsel) shall have received a counterpart of this Amendment from (i) the Required Lenders, (ii) the Borrower and (iii) the Administrative Agent.

(b) The Borrower shall have delivered to the Administrative Agent, at least three (3) Business Days prior to the Amendment Effective Date, a Notice of Prepayment.

(c) the Borrower shall pay to each Lender an amount equal to each Lender’s pro rata share of 0.25% of the aggregate principal amount of the Term Loans or Revolving Commitments outstanding on the Amendment Effective Date.

SECTION 3. Reference to and Effect on the Credit Agreement and the Credit Documents.

(a) On and after the Amendment Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” 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 No. 7 (i.e., the Amended Credit Agreement).

(b) The Credit Agreement and each of the other Credit Documents, as specifically amended by this Amendment are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Security Documents and all of the Collateral described therein do and shall continue to secure, and the Guarantees do and shall continue to support, the payment of all Obligations of the Loan Parties under the Credit 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 Credit Documents, nor constitute a waiver of any provision of any of the Credit Documents. On and after the effectiveness of this Amendment, this Amendment shall for all purposes constitute a Credit Document.

(d) It is the intent of the parties hereto, and the parties hereto agree, that this Amendment shall not constitute a novation of the Credit Agreement, any other Credit Document or any of the rights, obligations or liabilities thereunder.

(e) The Borrower hereby agrees that this Amendment shall constitute a Credit Document for all purposes of the Credit Agreement and the other Credit Documents.

SECTION 4. Execution in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery by facsimile or electronic transmission of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.

SECTION 5. Governing Law.

(a) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE SITTING IN NEW YORK CITY IN THE BOROUGH OF MANHATTAN, AND APPELLATE COURTS FROM ANY THEREOF, AND, BY EXECUTION AND DELIVERY OF THIS AMENDMENT, THE BORROWER, HOLDINGS, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE GENERAL JURISDICTION OF THE AFORESAID COURTS. THE BORROWER, HOLDINGS, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.

(c) EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 13.2 OF THE CREDIT AGREEMENT. NOTHING IN THIS AMENDMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE GOVERNMENTAL REQUIREMENTS.

(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY HOLDER OF A NOTE TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE LOAN PARTIES IN ANY OTHER JURISDICTION WITH RESPECT TO ANY OTHER CREDIT DOCUMENT THAT PROVIDES FOR SUCH OTHER JURISDICTION, INCLUDING WITHOUT LIMITATION THE COMMENCEMENT OF ENFORCEMENT PROCEEDINGS UNDER THE CREDIT DOCUMENTS IN ALL APPLICABLE JURISDICTIONS.

(e) THE BORROWER, HOLDINGS AND EACH LENDER HEREBY (I) IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (III) CERTIFY THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (IV) ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AMENDMENT, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 8.

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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.

	BRIGHTVIEW HOLDINGS, INC., as Holdings

	By:	/s/ James Abrahamson
	Name:	James Abrahamson
	Title:	President and Chief Executive Officer

	BRIGHTVIEW LANDSCAPES, LLC, as the Borrower

	By:	/s/ James Abrahamson
	Name:	James Abrahamson
	Title:	President and Chief Executive Officer