EX-10.5(c)

EX-10.5(C) 9 d507744dex105c.htm EX-10.5(C) EX-10.5(c)

Exhibit 10.5C

EXECUTION VERSION

AMENDMENT NO. 2 TO FIRST LIEN CREDIT AND GUARANTY AGREEMENT

THIS AMENDMENT NO. 2 TO FIRST LIEN CREDIT AND GUARANTY AGREEMENT, dated as of March 29, 2018 (this “Amendment”), by and among EAGLETREE-CARBIDE HOLDINGS (CAYMAN), LP, a Cayman Islands exempted limited partnership (“Holdings”), EAGLETREE-CARBIDE ACQUISITION CORP., a Delaware corporation (the “U.S. Borrower”), EAGLETREE-CARBIDE ACQUISITION S.À R.L., a Luxembourg private limited liability company (société à responsabilité limitée) with registered office at 48, Boulevard Grande-Duchesse Charlotte, L—1330 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Commerce and Companies register under number B216.833 (the “Lux Borrower”), EAGLETREE-CARBIDE HONG KONG LIMITED, a Hong Kong limited liability company (the “HK Borrower” and, together with the U.S. Borrower and the Lux Borrower, collectively, the “Borrowers”), EAGLETREE-CARBIDE HOLDINGS (US), LLC, a Delaware limited liability company (“LLC Subsidiary”), CERTAIN SUBSIDIARIES OF HOLDINGS PARTY HERETO, as Guarantors, THE LENDERS PARTY HERETO and each lender party hereto as a Lender of 2018 Incremental Term Loans (as defined below) (in such capacity, each an “Incremental Term Loan Lender”, and collectively the “Incremental Term Loan Lenders”), and MACQUARIE CAPITAL FUNDING LLC, as administrative agent (in such capacity, together with its permitted successors and assigns in such capacity, the “Administrative Agent”).

WHEREAS, reference is hereby made to the First Lien Credit and Guaranty Agreement, dated as of August 28, 2017 (as amended, restated, supplemented and/or otherwise modified prior to the date hereof, the “Credit Agreement”), by and among Holdings, the Borrowers, certain Subsidiaries of Holdings party thereto, as Guarantors, the Lenders party thereto from time to time, the Administrative Agent and the Collateral Agent;

WHEREAS, the Borrowers (x) intend for U.S. Borrower to make a one-time, cash dividend to Holdings and/or LLC Subsidiary on the Second Amendment Effective Date (as defined below) in an aggregate amount not to exceed $85,000,000, the proceeds of which shall be used thereby to make a one-time cash dividend to their equity holders (collectively, the “Dividend Payment”) and (y) request that the Required Lenders consent to the incurrence of the 2018 Incremental Term Loans (as defined below) and the making of such Dividend Payment as set forth in Section 9 below (the “Limited Consent”);

WHEREAS, to make the Dividend Payment and to pay certain fees (including any original issue discount or upfront fees), premiums, expenses and other transaction costs associated with the Dividend Payment, the Limited Consent, the 2018 Incremental Term Loans (as defined below) and this Amendment, U.S. Borrower is seeking to borrow $85,000,000 of new term loans (the “2018 Incremental Term Loans”) pursuant to Section 2.25 of the Credit Agreement;

WHEREAS, the Borrowers have requested that each Incremental Term Loan Lender make commitments (each an “Incremental Term Loan Commitment”) to provide the 2018 Incremental Term Loans, on the terms and conditions set forth herein;

WHEREAS, the Borrowers are hereby requesting the 2018 Incremental Term Loans in accordance with Section 2.25 of the Credit Agreement and the Administrative Agent, the Borrowers, each Incremental Term Loan Lender and the Lenders party hereto, constituting Required Lenders, have agreed, subject to the terms and conditions hereinafter set forth, to amend the Credit Agreement to provide for the 2018 Incremental Term Loans made by the Incremental Term Loan Lenders as set forth below and to approve the Limited Consent as set forth herein;

WHEREAS, Macquarie Capital (USA) Inc. shall act as sole lead arranger and sole bookrunner, in each case, with respect to this Amendment and the 2018 Incremental Term Loans provided for hereunder (in such capacity, the “Incremental Term Loan Lead Arranger”).

NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1. Defined Terms; References. Unless otherwise specifically defined herein, each term used herein which is defined in the Credit Agreement has the meaning assigned to such term in the Credit Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Credit Agreement shall, as of and after the Second Amendment Effective Date (as defined below), refer to the Credit Agreement as amended by this Amendment (the “Amended Credit Agreement”).

SECTION 2. 2018 Incremental Term Loans.

(a) Each Incremental Term Loan Lender severally agrees to make, on the Second Amendment Effective Date, a 2018 Incremental Term Loan denominated in Dollars to U.S. Borrower (with the Borrowers being liable therefor on a joint and several basis) in an amount equal to such Incremental Term Loan Lender’s commitment amount set forth on Schedule 1 hereto. Each Incremental Term Loan Lender’s 2018 Incremental Term Loan Commitment shall terminate immediately and without further action on the Second Amendment Effective Date after giving effect to the funding of such Incremental Term Loan Lender’s 2018 Incremental Term Loan Commitment on such date. Any amount of the 2018 Incremental Term Loans that is subsequently repaid or prepaid may not be reborrowed.

(b) The 2018 Incremental Term Loans shall constitute Incremental Term Loans and shall be added to, constitute a part of, and have the same terms as the initial Term Loans made to the Borrowers on the Closing Date and shall be added to each borrowing of outstanding initial Term Loans on the Second Amendment Effective Date pursuant to the Existing Term Loans Notice (as defined below) on a pro rata basis (based on the relative sizes of such borrowings), so that each Incremental Term Loan Lender providing such 2018 Incremental Term Loans will participate proportionately in each outstanding borrowing of initial Term Loans based on the principal amount of 2018 Incremental Term Loans provided by such Incremental Term Loan Lender.

(c) Each Incremental Term Loan Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent, Syndication Agent and Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent, Syndication Agent and Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Amended Credit Agreement are required to be performed by it as a Lender.

(d) Each Incremental Term Loan Lender party hereto hereby agrees to make its Incremental Term Loan Commitment on the following terms and conditions:

(i) Applicable Margin. The Applicable Margin for each 2018 Incremental Term Loan shall be the same Applicable Margin as applies with respect to the initial Term Loans.

(ii) Principal Payments. The Borrowers shall make principal payments on the 2018 Incremental Term Loans in installments of $212,500 on the dates set forth in Section 2.12 of the Amended Credit Agreement as if initial Term Loans and the last paragraph of Section 2.12 shall apply thereto.

(iii) Voluntary and Mandatory Prepayments. The 2018 Incremental Term Loans shall be subject to the same terms and conditions regarding voluntary and mandatory prepayments as set forth in the Amended Credit Agreement for the initial Term Loans.

(e) Each Incremental Term Loan Lender acknowledges and agrees that upon its execution of this Amendment and the making of 2018 Incremental Term Loans that such Incremental Term Loan Lender shall become, if not already, a “Lender” under, and for all purposes of, the Amended Credit Agreement and the other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.

(f) The parties hereto acknowledge that this Amendment shall constitute a Joinder Agreement for purposes of Section 2.25(h) of the Credit Agreement.

(g) The parties hereto (including, for the avoidance of doubt, the Required Lenders) acknowledge and agree that none of the 2018 Incremental Term Loans shall be deemed to constitute usage of the Maximum Incremental Facilities Amount (it being understood, for the avoidance of doubt, that any determination of the Consolidated First Lien Net Leverage Ratio after the occurrence of the Second Amendment Effective Date shall include the principal amount of any 2018 Incremental Term Loans that remain outstanding at such time).

(h) The Credit Agreement and each of the other Credit Documents, as specifically amended by this Amendment, are and, notwithstanding this Amendment, continue to be in full force and effect and are hereby in all respects ratified and confirmed (as expressly amended hereby). Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein, notwithstanding this Amendment, continue to secure the payment of all Obligations of the Credit Parties, as amended by this Amendment.

(i) 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 Second Amendment Effective Date, this Amendment shall for all purposes constitute a Credit Document.

SECTION 3. Use of Proceeds. All proceeds of the 2018 Incremental Term Loans incurred in accordance with this Amendment shall be applied by the Borrowers to (x) make the Dividend Payment, and (y) to pay fees (including any original issue discount or upfront fees), premiums, expenses and other transaction costs associated with the Dividend Payment, the Limited Consent, the 2018 Incremental Term Loans and this Amendment.

SECTION 4. Severability. If any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

SECTION 5. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Amendment.

SECTION 6. Entire Agreement. This Amendment, the Amended Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

SECTION 7. Ratification and Reaffirmation. Each Credit Party hereto hereby ratifies and reaffirms (a) the Obligations under the Amended Credit Agreement and each of the other Credit Documents to which it is a party and all of the covenants, duties, guarantees, indemnities, indebtedness and liabilities under the Amended Credit Agreement and the other Credit Documents to which it is a party and (b) the Liens and security interests created in favor of the Collateral Agent and the Lenders pursuant to each Collateral Document; which Liens and security interests shall continue in full force and effect during the term of the Amended Credit Agreement, and shall continue to secure the Obligations (as defined in the Amended Credit Agreement, which include for the avoidance of doubt each Parallel Liability) and each Credit Party party hereto confirms that the secured liabilities (however described in the Collateral Documents) cover the Obligations (which include for the avoidance of doubt each Parallel Liability), in each case, on and subject to the terms and conditions set forth in the Amended Credit Agreement and the other Credit Documents and will have and maintain the ranking required under the Collateral Documents (if any).

SECTION 8. Representations and Warranties. The Credit Parties each hereby represent and warrant to the Administrative Agent and the Lenders that:

(a) Each Credit Party party hereto has all requisite corporate (or equivalent) power and authority to enter into this Amendment. The execution, delivery and performance of this Amendment have been duly authorized by all necessary action on the part of each Credit Party party hereto. This Amendment has been duly executed and delivered by each Credit Party party hereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, except as may be limited by Debtor Relief Laws, by the principle of good faith and fair dealing, or limiting creditors’ rights generally or by equitable principles relating to enforceability.

(b) The execution, delivery and performance of this Amendment by each Credit Party party hereto do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority or other third Person, except (i) such as have been obtained and are in full force and effect, (ii) for filings and recordings with respect to the Collateral to be made or otherwise that have been delivered to the Collateral Agent for filing and/or recordation and (iii) those approvals, consents, registrations or other actions or notices, the failure of which to obtain or make could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(c) The execution, delivery and performance of this Amendment by each Credit Party party hereto and the consummation of the transactions contemplated hereby do not and will not (i) violate any of the Organizational Documents of such Credit Party; (ii) violate any provision of any Law applicable to or otherwise binding on Holdings, any Borrower or any of the Restricted Subsidiaries, except to the extent

such violation, either individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect or (iii) result in or require the creation or imposition of any Lien upon any of the properties or assets of Holdings, any Borrower or any of the Restricted Subsidiaries (other than any Liens created under any of the Credit Documents in favor of the Collateral Agent, on behalf of the Secured Parties, or Permitted Liens).

SECTION 9. Limited Consent and Acknowledgment. Notwithstanding anything to the contrary set forth in Sections 2.25(a)(ii), the definition of Maximum Incremental Facilities Amount or Section 6.4 of the Credit Agreement, the Administrative Agent and the Required Lenders hereby consent to the incurrence of the 2018 Incremental Term Loans and the Dividend Payment on the Second Amendment Effective Date. The consent in this Section 9 shall be effective only in this specific instance and for the specific purpose set forth herein and does not allow for any other or further departure from the terms and conditions of the Credit Agreement or any other Credit Document, which terms and conditions shall continue in full force and effect.

SECTION 10. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. The terms of Section 10.14, 10.15 and 10.16 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

SECTION 11. Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Amendment by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Amendment.

SECTION 12. Effectiveness. This Amendment shall become effective on the date on which each of the following conditions shall have been satisfied or waived (the “Second Amendment Effective Date”):

(a) the Administrative Agent shall have received from the Borrowers, Holdings, each other Guarantor, the Administrative Agent, the Collateral Agent and each Incremental Term Loan Lender and the Lenders sufficient to constitute, collectively, the Required Lenders, a duly executed counterpart of this Amendment signed on behalf of such party;

(b) The 2018 Incremental Term Loans shall satisfy all of the requirements of Sections 2.25(c) of the Credit Agreement;

(c) The Borrowers shall have paid (which payment may be made by deduction from the funded amount of 2018 Incremental Term Loans) to each Incremental Term Loan Lender party to this Agreement that funds Incremental Term Loans on the Second Amendment Effective Date, as fee compensation for the funding of such Incremental Term Loan Lender’s 2018 Incremental Term Loan, a funding fee in an amount equal to 0.50% of the stated principal amount of such Incremental Term Loan Lender’s 2018 Incremental Term Loans;

(d) The Borrowers shall have paid to each existing Lender that is party to this Amendment as a consenting Lender and has submitted its executed signature page hereto to the Administrative Agent no later than 4:00 p.m. (New York City time) on March 28, 2018, a consent fee equal to 0.25% of such existing Lender’s outstanding Term Loans (for the avoidance of doubt, exclusive of 2018 Incremental Term Loans) and Revolving Credit Commitments on the Second Amendment Effective Date;

(e) The Borrowers shall have obtained the required consents (the “Second Lien Limited Consent”) to allow the Dividend Payment from the lenders party to the Second Lien Credit and Guaranty Agreement, dated as of August 28, 2017 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Second Lien Credit Agreement”), by and among Holdings, the Borrowers, LLC Subsidiary, certain Subsidiaries of Holdings party thereto, as Guarantors, the lenders party thereto from time to time, the Administrative Agent and the Collateral Agent, and the Second Lien Limited Consent shall have become effective in accordance with its terms;

(f) all of the representations and warranties contained herein and in Section 4 of the Credit Agreement and in each other Credit Document (in each case, as amended by this Amendment) shall be true and correct in all material respects both immediately before and after giving effect to this Amendment (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects) on and as of the Second Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall have been true and correct in all respects) on and as of such earlier date;

(g) both immediately before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;

(h) the Administrative Agent shall have received a customary written opinion of (i) Jones Day, special U.S. counsel for the Credit Parties, (ii) Maples and Calder, special Cayman Islands counsel for the Credit Parties, (iii) AKD, special Luxembourg counsel for the Credit Parties, (iv) Loyens & Loeff, special Netherlands counsel for the Administrative Agent and (v) White & Case LLP, special Hong Kong counsel for the Administrative Agent, in each case addressed to the Administrative Agent, the Collateral Agent and the Lenders (including the Incremental Term Loan Lenders), and dated the Second Amendment Effective Date;

(i) the Administrative Agent shall have received a Funding Notice in accordance with Section 2.25(c)(iii) of the Credit Agreement; provided that, notwithstanding anything to the contrary in Section 2.25(c)(iii) or any other provision of any Credit Document, the Borrower Representative shall be allowed to deliver such Funding Notice by 1:00 p.m. (New York City time) at least two Business Days in advance of the proposed Credit Date (or such later date or time as is otherwise agreed by the Administrative Agent);

(j) the Administrative Agent shall have received a Conversion/Continuation Notice pursuant to Section 2.9 of the Credit Agreement for all outstanding borrowings of initial Term Loans for Interest Periods as selected in such Conversion/Continuation Notice that begins on the Second Amendment Effective Date (the “Existing Term Loans Notice”); it being agreed that the Borrowers shall be permitted to select an Interest Period ending on June 29, 2018, pursuant to such Existing Term Loans Notice; and

(k) all reasonable and documented expenses and other compensation payable to the Incremental Term Loan Lead Arranger and the Administrative Agent, pursuant to Section 10.2 of the Credit Agreement or otherwise, shall have been paid (or netted from the proceeds of the 2018 Incremental Term Loans to the extent agreed by the parties hereto) to the extent earned, due and owing and otherwise reimbursable pursuant to the terms thereof and, in the case of expenses, invoiced at least two Business Days prior to the Second Amendment Effective Date.

[SIGNATURE PAGES FOLLOW]

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


EAGLETREE-CARBIDE HOLDINGS
(CAYMAN), LP, as Holdings and a Guarantor

By: EagleTree-Carbide (GP), LLC, its general partner

By:		/s/ George L. Majoros, Jr.
Name:		George L. Majoros, Jr.
Title:		Authorized Signatory

EAGLETREE-CARBIDE ACQUISITION CORP., as a Borrower

By:		/s/ George L. Majoros, Jr.
Name:		George L. Majoros, Jr.
Title:		President

EAGLETREE-CARBIDE ACQUISITION S.À R.L, as a Borrower

By:		/s/ Robert Van’t Hoeft
Name:		Robert Van’t Hoeft
Title:		Class A Manager

By:		/s/ Stuart Martin
Name:		Stuart Martin
Title:		Class B Manager

EagleTree-Carbide Acquisition S.à r.l., société à responsabilité limitée
Registered Office: 48, boulevard Grande-Duchesse Charlotte, L-1330 Luxembourg, R.C.S.: B 216.833

EAGLETREE-CARBIDE HONG KONG LIMITED, as a Borrower

By:		/s/ Nicholas Hawkins
Name:		Nicholas Hawkins
Title:		Director