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[EXECUTION COPY]
AMENDMENT NO. 2 TO CREDIT AGREEMENT
This AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of January 16, 2001
(this "Amendatory Agreement"), is among WEIGHT WATCHERS INTERNATIONAL, INC., a
Virginia corporation ("WWI"), WW FUNDING CORP., a Delaware corporation (the "SP1
Borrower", and together with WWI, the "Borrowers"), and the various financial
institutions as are parties hereto (collectively, the "Lenders").
W I T N E S S E T H:
WHEREAS, the Borrowers are parties to a Credit Agreement, dated
September 29, 1999 (as amended by Amendment No. 1, dated December 15, 1999, and
as otherwise amended, supplemented, amended and restated or otherwise modified
prior to the date hereof the "Existing Credit Agreement") with the various
financial institutions as party thereto, Credit Suisse First Boston, as the
syndication agent and as a lead arranger (in such capacities, the "Syndication
Agent" and a "Lead Arranger", respectively), BHF (USA) Capital Corporation, as
the documentation agent (in such capacity, the "Documentation Agent") and The
Bank of Nova Scotia, as (x) the administrative agent, paying agent and
registration agent for the TLCs and (y) a lead arranger (in such capacities, the
"Administrative Agent" and a "Lead Arranger", respectively) for the Lenders (the
Syndication Agent, the Lead Arrangers, the Documentation Agent and the
Administrative Agent, collectively, the "Agents"); and
WHEREAS, the Borrowers have requested the Lenders, and Lenders
constituting Required Lenders have agreed, to amend and restate the Existing
Credit Agreement in its entirety in the form attached hereto as Annex I as
provided below;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1 Certain Definitions. The following terms (whether or not
underscored) when used in this Amendatory Agreement shall have the following
meanings (such meanings to be equally applicable to the singular and plural form
thereof):
"Administrative Agent" is defined in the first recital.
"Agents" is defined in the first recital.
"Amendatory Agreement" is defined in the preamble.
"Borrowers" is defined in the preamble.
"Credit Agreement" is defined in Subpart 2.1.
"Documentation Agent" is defined in the first recital.
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"Effective Date" is defined in Subpart 3.1.
"Effective Date Certificate" is defined in Subpart 3.5.
"Existing Credit Agreement" is defined in the first recital.
"Lead Arranger" is defined in the first recital.
"Lenders" is defined in the preamble.
"Pro Forma Balance Sheet" is defined in Subpart 3.10(b).
"SP1 Borrower" is defined in the preamble.
"Syndication Agent" is defined in the first recital.
"WWI" is defined in the preamble.
SUBPART 1.2 Other Definitions. Terms for which meanings are provided in
the Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendatory Agreement with such meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
SUBPART 2.1 Amendment and Restatement of Existing Credit Agreement.
Effective on (and subject to the occurrence of) the Effective Date, the Existing
Credit Agreement (including all schedules and exhibits thereto) shall be and is
hereby amended to read in its entirety as set forth in Annex I (the Existing
Credit Agreement, as so amended by this Amendatory Agreement, being referred to
as the "Credit Agreement"), and as so amended and restated is hereby ratified,
approved and confirmed in each and every respect. The rights and obligations of
the parties to the Existing Credit Agreement with respect to the period prior to
the Effective Date shall not be affected by such amendment and restatement.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1 Effective Date. This Amendatory Agreement (and the
amendments and modifications contained herein) shall become effective on the
date (the "Effective Date") when all of the conditions set forth in this Subpart
III have been satisfied.
SUBPART 3.2 Execution of Counterparts. The Agents shall have received
counterparts of (i) the Credit Agreement executed on behalf of the Borrowers,
the Required Lenders (as defined in the Existing Credit Agreement), each Lender
whose commitments or extensions of credit under the Existing Credit Agreement
are increasing pursuant to the Credit Agreement and any new Lenders to the
Credit Agreement and (ii) this Amendatory Agreement executed on behalf of the
Borrowers and the Required Lenders (as defined in the Existing Credit
Agreement).
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SUBPART 3.3 Resolutions, etc. The Administrative Agent shall have
received from each Obligor a certificate, dated the Effective Date, of its
Secretary or Assistant Secretary as to:
(a) resolutions of each such Obligor's Board of Directors (or
other similar governing body) then in full force and effect
authorizing, as applicable, the execution, delivery and performance of
this Amendatory Agreement, the Notes and each other Loan Document to be
executed by such Obligor; and
(b) the incumbency and signatures of those of each such
Obligor's officers authorized, as applicable, to act with respect to
this Amendatory Agreement, the Notes and each other Loan Document
executed by such Obligor;
upon which certificate each Lender may conclusively rely until each such Lender
shall have received a further certificate of the Secretary of such Obligor
canceling or amending such prior certificate.
SUBPART 3.4 Purchase Documents. The Administrative Agent shall have
received (i) (with copies for each Lender), a fully executed copy of the
Purchase Agreement, and (ii) upon request, all other documents and instruments
delivered in connection with the consummation of the Transaction that are
required to be delivered pursuant to the terms of the Purchase Agreement and
agreements related thereto all of which, in the case of this clause (ii), shall
be in form and substance satisfactory to the Agents. The Purchase Agreement
shall be in full force and effect and shall not have been modified or waived in
any material respect, nor shall there have been any forbearance to exercise any
material rights with respect to any of the terms or provisions relating to the
conditions to the consummation of the Transaction.
SUBPART 3.5 Effective Date Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, the Effective Date Certificate
substantially in the form of Exhibit A hereto, dated the Effective Date and duly
executed and delivered by the chief executive, financial or accounting (or
equivalent) Authorized Officer of each Borrower, in which certificate WWI shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct representations and warranties of WWI made as of such date
under this Agreement, and, at the time such certificate is delivered, such
statements shall in fact be true and correct.
SUBPART 3.6 Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender that has requested a Note, such
Lender's Notes, as the case may be, duly executed and delivered by an Authorized
Officer of the applicable Borrower.
SUBPART 3.7 Payment of Outstanding Indebtedness, etc. All Indebtedness
identified in Annex II hereto, together with all interest, all prepayment
premiums and other amounts due and payable with respect thereto, shall have been
paid in full and all Liens securing payment of any such Indebtedness have been
released and the Administrative Agent shall have received all executed Uniform
Commercial Code Form UCC-3 termination statements or other instruments as may be
suitable or appropriate in connection therewith (or arrangements satisfactory to
the Administrative Agent shall have been entered into relating to such release
promptly following the Effective Date).
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SUBPART 3.8 Affirmation and Consent. The Administrative Agent shall
have received, with counterparts for each Lender, an affirmation and consent,
dated as of the Effective Date and duly executed by an Authorized Officer of
each Guarantor, substantially in the form of Exhibit B hereto.
SUBPART 3.9 Uniform Commercial Code Statements. The Administrative
Agent shall have received:
(i) executed copies of Uniform Commercial Code financing
statements (Form UCC-1), naming WWNA as a debtor and the Administrative
Agent as the secured party, or other similar instruments or documents,
to be filed under the Uniform Commercial Code of all jurisdictions as
may be necessary or, in the opinion of the Administrative Agent,
desirable to perfect the security interests of the Administrative Agent
pursuant to the WWI Security Agreement in assets acquired by the
Obligors in connection with the Transaction;
(ii) executed copies of proper Uniform Commercial Code Form
UCC-3 termination statements, if any, necessary to release all Liens
and other rights of any Person (x) in any collateral described in any
Security Agreement previously granted by any Person, and (y) securing
any of the Indebtedness of Weighco being repaid in connection with the
Transaction, together with such other Uniform Commercial Code Form
UCC-3 termination statements as the Administrative Agent may reasonably
request from such Obligors; and
(iii) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Administrative Agent, dated a
date reasonably near to the Effective Date, listing all effective
financing statements which name Weighco (under its present name and any
previous names) as the debtor and which are filed in Alabama, Alaska,
Florida, Georgia, Xxxxx Xxxxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxx and
Washington, together with copies of such financing statements (none of
which shall cover any collateral described in any Security Agreement).
SUBPART 3.10 Financial Information, etc. The Administrative Agent shall
have received, with counterparts for each Lender,
(a) the (i) unqualified audited consolidated balance sheet of
Weighco for the fiscal year ended December 25, 1999, and (ii) the
unaudited consolidated combined financial information reviewed by
PricewaterhouseCoopers LLP for the period ended September 30, 2000; and
(b) a pro forma unaudited condensed consolidated balance sheet
of WWI and its Subsidiaries, as of October 28, 2000 for WWI and
September 30, 2000 for Weighco (the "Pro Forma Balance Sheet"),
certified by the chief financial or accounting Authorized Officer of
WWI, giving effect to the consummation of the Transaction and all the
transactions contemplated by the Credit Agreement and reflecting the
proposed capital structure of WWI, which shall be satisfactory in all
respects to the Administrative Agent.
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SUBPART 3.11 Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account, or for the account of each Lender, or
for the account of each fronting Lender, as the case may be, all fees, costs and
expenses due and payable pursuant to Sections 3.3 and 11.3 of the Credit
Agreement, if then invoiced.
SUBPART 3.12 Insurance. To the extent not previously delivered, the
Administrative Agent shall have received, with copies for each Lender, binders
of insurance, from one or more insurance companies satisfactory to the
Administrative Agent, evidencing coverage required to be maintained pursuant
hereto and each Loan Document.
SUBPART 3.13 Litigation. The Administrative Agent shall be satisfied in
all respects that there exists no litigation, inquiry or investigation
contesting the Transaction, this Agreement or any other aspect of the
Transaction, or which would have a material adverse effect on the property,
assets, financial condition, operations or business of WWI and its Subsidiaries,
taken as a whole.
SUBPART 3.14 Material Adverse Change. The Lenders shall be satisfied
(as evidenced by the delivery of their respective executed signature page to
this Amendatory Agreement) that there has been no material adverse change in the
property, assets, financial condition, operations or business of WWI, WEI, WNI
or WSI since April 29, 2000.
SUBPART 3.15 Opinions of Counsel. The Administrative Agent shall have
received opinions, dated the date of the Effective Date and addressed to the
Administrative Agent and all Lenders, from:
(a) Xxxxxxx Xxxxxxx & Xxxxxxxx, special New York counsel to
the Borrowers and each Obligor, in form and substance satisfactory to
the Administrative Agent;
(b) Hunton & Xxxxxxxx, special Virginia counsel to WWI, in
form and substance satisfactory to the Administrative Agent;
(c) Xxxxx, Xxxxx & Xxxxxxx, special Australian counsel to WW
Australia and the Borrowers, in form and substance satisfactory to the
Administrative Agent; and
(d) United Kingdom counsel to WWI, in form and substance
satisfactory to the Administrative Agent.
SUBPART 3.16 Transaction. The Administrative Agent shall have received
evidence, satisfactory to the Administrative Agents and Syndication Agent in
their sole discretion, of the consummation of the Transaction including payment
of a portion of the cash consideration for acquisition of the Weighco Business
with cash on the balance sheet of WWI at an amount not less than $25,000,000.
The terms and conditions of such Transaction shall be (x) those set forth in the
Purchase Agreement or (y) other terms and conditions reasonably satisfactory to
the Agents.
SUBPART 3.17 [Intentionally Omitted].
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PART IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Amendatory Agreement, continue
the Existing Loans as Loans under the Credit Agreement, to continue Existing
Letters of Credit as Letters of Credit under the Credit Agreement and to make
Credit Extensions under the Credit Agreement each Borrower hereby represents and
warrants as follows:
SUBPART 4.1 Representations and Warranties, etc. That the
representations and warranties contained in Article VI of the Credit Agreement
(as applicable to each such Borrower) are true and correct in all material
respects, as of the date hereof with the same effect as if then made (unless
stated to relate solely to an earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date).
SUBPART 4.2. Liens Unimpaired. After giving effect to this Amendatory
Agreement, neither the modification of the Existing Credit Agreement effected
pursuant to this Amendatory Agreement nor the execution, delivery, performance
or effectiveness of this Amendatory Agreement:
(a) impairs the validity, effectiveness or priority of the
Liens granted pursuant to any Pledge Agreement or any Security
Agreement, and such Liens continue unimpaired with the same priority to
secure repayment of all Obligations (including any Obligations arising
in connection with the making of the Additional Term A Loan Commitments
or the Additional Term A Loans or the Term D Loan Commitments or the
Term D Loans and the Revolving Loan Commitment as incurred pursuant to
the terms of the Credit Agreement), whether heretofore or hereafter
incurred; or
(b) requires that any new filings be made or other action
taken to perfect or to maintain the perfection of such Liens.
SUBPART 4.3 Validity, etc. This Amendatory Agreement constitutes the
legal, valid and binding obligation of each Borrower enforceable in accordance
with its terms subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
SUBPART 4.4 No Default. Both immediately before and after giving effect
to this Amendatory Agreement, no Default has occurred and is continuing as of
the Effective Date.
PART V
MISCELLANEOUS
SUBPART 5.1 Cross-References. References in this Amendatory Agreement
to any Part or Subpart are, unless otherwise specified or otherwise required by
the context, to such Part or Subpart of this Amendatory Agreement.
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SUBPART 5.2 Loan Document Pursuant to Existing Credit Agreement. This
Amendatory Agreement is a Loan Document executed pursuant to the Existing Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Existing Credit Agreement and, after the
Effective Date, the Credit Agreement.
SUBPART 5.3 Successors and Assigns. This Amendatory Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 5.4 Counterparts. This Amendatory Agreement may be executed by
the parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which together shall
constitute but one and the same agreement.
SUBPART 5.5 Governing Law. THIS AMENDATORY AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendatory
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
BORROWERS: WEIGHT WATCHERS INTERNATIONAL, INC.
By: ________________________________
Name:
Title:
WW FUNDING CORP.
By: ________________________________
Name:
LENDERS:
