EXHIBIT 10.9
FOURTH AMENDMENT TO CREDIT AGREEMENT
FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
as of February 27, 2004, among DHM HOLDING COMPANY, INC., a Delaware corporation
("Holdings"), XXXX FOOD COMPANY, INC., a Delaware corporation (the "U.S.
Borrower"), SOLVEST LTD., a corporation organized under the laws of Bermuda (the
"Bermuda Borrower" and, together with the U.S. Borrower, the "Borrowers"), the
Lenders from time to time party to the Credit Agreement, DEUTSCHE BANK AG NEW
YORK BRANCH, as Administrative Agent (in such capacity, the "Administrative
Agent"), BANC OF AMERICA SECURITIES LLC and THE BANK OF NOVA SCOTIA, as
Co-Syndication Agents (in such capacity, each, a "Co-Syndication Agent" and,
collectively, the "Co-Syndication Agents"), FLEET NATIONAL BANK and SOCIETE
GENERALE, as Co-Documentation Agents (in such capacity, each, a
"Co-Documentation Agent" and, collectively, the "Co-Documentation Agents") and
DEUTSCHE BANK SECURITIES INC., BANC OF AMERICA SECURITIES LLC and THE BANK OF
NOVA SCOTIA, as Joint Lead Arrangers and Joint Book Running Managers (in such
capacity, each, a "Joint Lead Arranger" and, collectively, the "Joint Lead
Arrangers"). All capitalized terms used herein and not otherwise defined shall
have the respective meanings provided such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Holdings, the Borrowers, the Lenders, the Agents and
the Joint Lead Arrangers are parties to a Credit Agreement, dated as of March
28, 2003 (as amended, modified and/or supplemented from time to time to, but not
including, the date hereof, the "Credit Agreement"); and
WHEREAS, subject to the terms and conditions of this
Amendment, the parties hereto wish to amend the Credit Agreement as herein
provided;
NOW, THEREFORE, it is agreed:
I. Amendments to Credit Agreement.
1. Notwithstanding anything to the contrary contained in the Credit
Agreement (including Sections 9.02, 9.05 and 9.17 thereof), Holdings may (x)
form Intermediate Holdco (which shall be (and at all times remain) a
Wholly-Owned Subsidiary of Holdings), (y) form Corporate Holdco (which shall be
(and at all times remain) a Wholly-Owned Subsidiary of Intermediate Holdco) and
(z) contribute all of the capital stock of the U.S. Borrower and Corporate
Holdco to Intermediate Holdco as a common equity contribution, so long as
substantially concurrently with such formation and contribution, (i)
Intermediate Holdco shall have become a party to the Credit Agreement, the U.S.
Security Agreement, the U.S. Pledge Agreement and the Intercompany Subordination
Agreement pursuant to documentation in form
and substance satisfactory to the Administrative Agent, (ii) Corporate Holdco
shall have become a party to the U.S. Subsidiaries Guaranty, the U.S. Security
Agreement, the U.S. Pledge Agreement and the Intercompany Subordination
Agreement pursuant to documentation in form and substance satisfactory to the
Administrative Agent, (iii) all of the Equity Interests of Intermediate Holdco
shall have been pledged by Holdings in favor of the Collateral Agent pursuant to
the U.S. Pledge Agreement, (iv) all of the capital stock of the U.S. Borrower
and Corporate Holdco shall have been pledged by Intermediate Holdco in favor of
the Collateral Agent pursuant to the U.S. Pledge Agreement, (v) the
Administrative Agent shall have received from Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP, special counsel to the Credit Parties, an opinion addressed to each Agent,
the Collateral Agent and each of the Lenders and dated the Fourth Amendment
Effective Date, covering such matters relating to this Amendment and the
transactions contemplated thereby as may be reasonably requested by the
Administrative Agent and otherwise in form and substance satisfactory to the
Administrative Agent and (vi) each of Intermediate Holdco and Corporate Holdco
shall have taken all other actions as would otherwise have been required to be
taken by it pursuant to Section 5 of the Credit Agreement if Intermediate Holdco
or Corporate Holdco, as the case may be, had been a U.S. Credit Party on the
Initial Borrowing Date (the conditions described in preceding clauses (i)
through (vi), collectively, the "Holdco Contribution Requirements").
2. The first paragraph of the Credit Agreement is hereby amended by
inserting the text "XXXX HOLDING COMPANY, LLC, a Delaware limited liability
company ("Intermediate Holdco")," immediately prior to the text "XXXX FOOD
COMPANY, INC." appearing in said paragraph.
3. Section 4.02(c) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 4.02(c) in
lieu thereof:
"(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the
Effective Date upon which Holdings or any of the its Subsidiaries receives
Net Sale Proceeds from any Asset Sale, an amount equal to 100% of the Net
Sale Proceeds from such Asset Sale shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements
of Sections 4.02(h) and (i); provided that (i) with respect to Net Sale
Proceeds (other than (x) Net Sale Proceeds from any Contemplated Asset Sale
consummated in accordance with the requirements of Section 9.02(xviii) and
(y) any Net Sale Proceeds from the sale of any Principal Property pursuant
to Section 9.02(xix)) received by Holdings or any of its Subsidiaries in
any Fiscal Year of Holdings not to exceed (in the aggregate) $25,000,000,
such Net Sale Proceeds shall not give rise to a mandatory repayment and/or
commitment reduction on such date as otherwise required above, so long as
no Specified Default and no Event of Default exists at the time such Net
Sale Proceeds are received and an Authorized Officer of Holdings or the
U.S. Borrower has delivered a certificate to the Administrative Agent on or
prior to such date stating that such Net Sale Proceeds shall be used (or
contractually committed to be used) to purchase capital assets used or to
be used in a Permitted Business within 360 days following the date of
receipt of such Net Sale Proceeds from such Asset Sale (which certificate
shall set forth the estimates of the proceeds to be so expended); provided,
however, that (I) if all or any portion of such Net Sale Proceeds are not
so used within such 360-day period (or contractually committed within such
period to be used), such remaining portion shall be applied on the last day
of such period as a mandatory repayment as provided above (without giving
effect to the immediately preceding
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proviso) and (II) if all or any portion of such Net Sale Proceeds are not
required to be applied on the last day of such 360-day period referred to
in clause (I) of this proviso because such amount is contractually
committed within such period to be used and then either (A) subsequent to
such date such contract is terminated or expires without such portion being
so used or (B) such contractually committed portion is not so used within
six months after the last day of such 360-day period referred to in clause
(I) of this proviso, such remaining portion, in the case of either of the
preceding clauses (A) or (B), shall be applied as a mandatory repayment as
provided above (without giving effect to the immediately preceding proviso)
and (ii) with respect to Net Sale Proceeds received by Holdings or any of
its Subsidiaries from an individual Asset Sale not to exceed $10,000,000,
such Net Sale Proceeds in an aggregate amount (for all such individual
Asset Sales) in any Fiscal Year of Holdings not to exceed $25,000,000,
shall not give rise to a mandatory repayment and/or commitment reduction on
such date as otherwise required above, so long as no Specified Default and
no Event of Default exists at the time such Net Sale Proceeds are received
(it being understood that, in connection with the receipt of eligible Net
Sale Proceeds from a given Asset Sale, the U.S. Borrower may elect to
utilize the reinvestment exemption set forth in clause (i) above or the
non-reinvestment exemption set forth in clause (ii) above). Notwithstanding
anything to the contrary contained in this Section 4.02(c), (x) if the
Holdings Senior Notes Documents (after the execution and delivery thereof),
the Intermediate Holdco Senior Notes Documents (after the execution and
delivery thereof), the New Senior Notes Documents, the New 2010 Senior
Notes Documents or the Existing Senior Notes Documents permit a lesser
amount to be retained or reinvested, or have a shorter reinvestment period,
than is provided above with respect to any Asset Sales, then such lesser
permitted retained or reinvestment amount, and/or shorter reinvestment
period, as the case may be, shall be applicable for purposes of this
Section 4.02(c) so long as the Holdings Senior Notes, Intermediate Holdco
Senior Notes, New Senior Notes, New 2010 Senior Notes or such Existing
Senior Notes, as the case may be, remain outstanding, and (y) in no event
shall Holdings or any of its Subsidiaries use any proceeds from any Asset
Sale to make any voluntary or mandatory repayment or prepayment of Holdings
Senior Notes, Intermediate Holdco Senior Notes, New Senior Notes, New 2010
Senior Notes or Existing Senior Notes and, before any such obligation to
use such proceeds to make such repayment shall arise, Holdings or the
respective Subsidiary shall reinvest the respective amounts as permitted
above in this Section 4.02(c) or apply such proceeds as a mandatory
prepayment in accordance with requirements of Sections 4.02(h) and (i).".
4. Section 4.02(d) of the Credit Agreement is hereby amended by deleting
the text "on the Effective Date" appearing in clause (i) of said Section and
inserting the text "on the Fourth Amendment Effective Date (except for the
Indebtedness described in Section 9.04(xvi)(V))" in lieu thereof.
5. Section 4.02(e) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing prior to the text "(ii) the sale" and
inserting a comma in lieu thereof and (ii) inserting the text "and (iii) an
Excluded Equity Event" immediately after the text "$2,000,000 in any Fiscal Year
of Holdings" appearing in said Section.
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6. Section 7.03 of the Credit Agreement is hereby amended by deleting the
text "and the other Existing Indebtedness Agreements" appearing in clause (ii)
of said Section and inserting the text ", the other Existing Indebtedness
Agreements and, on and after the execution and delivery thereof, the Holdings
Senior Notes Indenture and the Intermediate Holdco Senior Notes Indenture" in
lieu thereof.
7. Section 7.25(b) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 7.25(b) in
lieu thereof:
"(b) Holdings has no significant assets (other than (w) the Equity
Interests of Intermediate Holdco, (x) after the issuance thereof, the
Equity Interests of each of the Unrestricted Wellbeing Joint Ventures, (y)
Intercompany Notes evidencing intercompany loans permitted to be made by
Holdings pursuant to Section 9.05, and (z) immaterial assets used for the
performance of those activities permitted to be performed by Holdings
pursuant to Section 9.01(b)) or liabilities (other than under this
Agreement and the other Documents to which it is a party (including, on and
after the execution and delivery thereof, the Holdings Senior Notes
Documents), those liabilities permitted to be incurred by Holdings pursuant
to Section 9.01(b) and, as and when issued from time to time in accordance
with the terms of this Agreement, under Shareholder Subordinated Notes).".
8. Section 7.25 of the Credit Agreement is hereby further amended by
inserting the following new clauses (d) and (e) at the end of said Section:
"(d) Intermediate Holdco has no significant assets (other than the
capital stock of the U.S. Borrower and Corporate Holdco, Intercompany Notes
evidencing intercompany loans permitted to be made by Intermediate Holdco
pursuant to Section 9.05 and immaterial assets used for the performance of
those activities permitted to be performed by Intermediate Holdco pursuant
to Section 9.01(j)) or liabilities (other than under this Agreement and the
other Documents to which it is a party (including, on and after the
execution and delivery thereof, the Intermediate Holdco Senior Notes
Documents) and those liabilities permitted to be incurred by Intermediate
Holdco pursuant to Section 9.01(j)).
(e) Corporate Holdco has no significant assets (other than immaterial
assets used for the performance of those activities permitted to be
performed by Corporate Holdco pursuant to Section 9.01(k)) or liabilities
(other than under this Agreement and the other Documents to which it is a
party (including, on and after the execution and delivery thereof, the
Intermediate Holdco Senior Notes Documents) and those liabilities permitted
to be incurred by Corporate Holdco pursuant to Section 9.01(k)).".
9. Section 8.01(b) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 8.01(b) in
lieu thereof:
"(b) Quarterly Financial Statements. Within 45 days after the close of
the first three quarterly accounting periods in each Fiscal Year of the
U.S. Borrower, (i) (x) the consolidated balance sheet of Holdings (or,
after the Fourth Amendment Effective Date, the U.S. Borrower) and its
Consolidated Subsidiaries
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as at the end of such quarterly accounting period and the related
consolidated statements of income and of cash flows for such quarterly
accounting period and for the elapsed portion of the Fiscal Year ended with
the last day of such quarterly accounting period, in each case (commencing
with the financial statements to be delivered in respect of the 1st Fiscal
Quarter of Fiscal Year 2004) setting forth comparative figures for the
corresponding quarterly accounting period in the prior Fiscal Year and the
budgeted figures for such quarterly period as set forth in the respective
financial projections theretofore delivered pursuant to Section 8.01(d)
(unless such quarterly period occurs prior to the delivery (or required
delivery) of the first financial projections pursuant to Section 8.01(d)
which include such quarterly accounting period), (y) the consolidated
balance sheet of each Business Segment as at the end of such quarterly
accounting period and the related consolidated statement of income of such
Business Segment for such quarterly accounting period and for the elapsed
portion of the Fiscal Year ended with the last day of such quarterly
accounting period, in each case (commencing with the financial statements
to be delivered in respect of the 1st Fiscal Quarter of Fiscal Year 2004)
setting forth comparative figures for the corresponding quarterly
accounting period in the prior Fiscal Year, and (z) commencing with the 3rd
Fiscal Quarter of Fiscal Year 2003, the consolidated balance sheets of the
U.S. Dole Group and the Non-U.S. Dole Group as at the end of such quarterly
accounting period and the related consolidated statements of income of each
such group for such quarterly accounting period and for the elapsed portion
of the Fiscal Year ended with the last day of such quarterly accounting
period, all of the foregoing of which shall be in reasonable detail and, in
the case of the financial statements described in subclause (x) above, be
certified by the senior financial officer or other Authorized Officer of
Holdings or the U.S. Borrower that they fairly present in all material
respects in accordance with U.S. GAAP the financial condition of Holdings
(or, after the Fourth Amendment Effective Date, the U.S. Borrower) and its
Consolidated Subsidiaries as of the dates indicated and the results of
their operations and/or changes in their cash flows for the periods
indicated, subject to normal year-end audit adjustments and the absence of
footnotes and (ii) management's discussion and analysis of the important
operational and financial developments during such quarterly accounting
period; provided, however, that for any quarterly accounting period for
which the U.S. Borrower has filed a Form 10-Q Report with the SEC and the
Chief Financial Officer or other Authorized Officer of Holdings has
delivered to the Administrative Agent a certificate certifying that the
Parent Business Condition has been satisfied for such quarterly accounting
period, the furnishing of (I) the U.S. Borrower's Form 10-Q Report filed
with the SEC for such quarterly accounting period and (II) the consolidated
balance sheet of each Business Segment as at the end of such quarterly
accounting period and the related consolidated statement of income of such
Business Segment for such quarterly accounting period, shall satisfy the
requirements of subclause (i) and (ii) of this Section 8.01(b).".
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10. Section 8.01(c) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 8.01(c) in
lieu thereof:
"(c) Annual Financial Statements. Within 90 days after the close of
each Fiscal Year of the U.S. Borrower, (i) (x) the consolidated balance
sheet of Holdings (or, after the Fourth Amendment Effective Date, the U.S.
Borrower) and its Consolidated Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of income and stockholders'
equity and of cash flows for such Fiscal Year and (and commencing with the
financial statements to be delivered in respect of Fiscal Year 2004)
setting forth comparative consolidated figures for the preceding Fiscal
Year and comparable budgeted figures for such Fiscal Year as set forth in
the respective financial projections delivered pursuant to Section 8.01(d),
(y) the consolidated balance sheet of each Business Segment as at the end
of such Fiscal Year and the related consolidated statements of income of
each Business Segment for such Fiscal Year and (commencing with the
financial statements to be delivered in respect of Fiscal Year 2004)
setting forth comparative consolidated figures for the preceding Fiscal
Year and (z) the consolidated balance sheet of each of the U.S. Dole Group
and the Non-U.S. Dole Group as at the end of such Fiscal Year and the
related consolidated statements of income of each such group for such
Fiscal Year and (commencing with the financial statements to be delivered
in respect of Fiscal Year 2004) setting forth comparative consolidated
figures for the preceding Fiscal Year, (ii) in the case of the financial
statements referred to in subclause (i)(x) above (except for such
comparable budgeted figures), together with a certification by Deloitte &
Touche LLP or such other independent certified public accountants of
recognized national standing as shall be acceptable to the Administrative
Agent, in each case to the effect that (I) such statements fairly present
in all material respects the financial condition of Holdings (or, after the
Fourth Amendment Effective Date, the U.S. Borrower) and its Consolidated
Subsidiaries as of the dates indicated and the results of their operations
and changes in financial position for the periods indicated in conformity
with U.S. GAAP applied on a basis consistent with prior years and (II) in
the course of its regular audit of the business of Holdings (or, after the
Fourth Amendment Effective Date, the U.S. Borrower) and its Consolidated
Subsidiaries, which audit was conducted in accordance with U.S. GAAP (and
made without qualification or expression of uncertainty, in each case as to
going concern), no Default or Event of Default which has occurred and is
continuing has come to their attention or, if such a Default or an Event of
Default has come to their attention, a statement as to the nature thereof,
and (iii) management's discussion and analysis of the important operational
and financial developments during such Fiscal Year; provided, however, that
for any Fiscal Year for which the U.S. Borrower has filed a Form 10-K
Report with the SEC and the Chief Financial Officer or other Authorized
Officer of Holdings has delivered to the Administrative Agent a certificate
(x) certifying that the Parent Business Condition has been satisfied during
such Fiscal Year and (y) setting forth the aggregate amount of Dividends
paid to Holdings by the U.S. Borrower during such Fiscal Year pursuant to
Sections 9.06(iii), (iv) and (v), the furnishing of (I) the U.S. Borrower's
Form 10-K Report filed with the SEC for such Fiscal Year and (II) the
consolidated balance sheet of each Business Segment as at the end of such
Fiscal Year and the related consolidated statement of income of such
Business Segment for such Fiscal Year, shall satisfy the requirements of
subclause (i) and (iii) of this Section 8.01(c).".
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11. Section 8.01(d) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 8.01(d) in
lieu thereof:
"(d) Financial Projections, etc. Not more than 45 days after the
commencement of each Fiscal Year of the U.S. Borrower (beginning with
Fiscal Year 2004), financial projections in form reasonably satisfactory to
the Administrative Agent (including projected statements of income, sources
and uses of cash and balance sheets, taking into account any Significant
Asset Sales intended to be consummated during such Fiscal Year) prepared by
Holdings (or, after the Fourth Amendment Effective Date, the U.S. Borrower)
(i) for each of the four Fiscal Quarters of such Fiscal Year prepared in
detail and (ii) for each of the immediately succeeding three Fiscal Years
prepared in summary form, in each case, on a consolidated basis, for
Holdings (or, after the Fourth Amendment Effective Date, the U.S. Borrower)
and its Consolidated Subsidiaries and setting forth, with appropriate
discussion, the principal assumptions upon which such financial projections
are based.".
12. Section 8.01(e) of the Credit Agreement is hereby amended by deleting
the text "Fiscal Year of Holdings" appearing in clause (y) of said Section and
inserting the text "Fiscal Year of the U.S. Borrower" in lieu thereof.
13. Section 8.01(f) of the Credit Agreement is hereby amended by deleting
the text "or Existing Senior Notes Document" appearing in clause (y) of said
Section and inserting the text ", Existing Senior Notes Document or, on and
after the execution and delivery thereof, any Holdings Senior Notes Document or
any Intermediate Holdco Senior Notes Document" in lieu thereof.
14. Section 8.01(k) of the Credit Agreement is hereby amended by deleting
the text "Fiscal Year of Holdings" appearing in said Section and inserting the
text "Fiscal Year of the U.S. Borrower" in lieu thereof.
15. Section 8.14(a) of the Credit Agreement is hereby amended by (i)
deleting the text "(x) Holdings" appearing in said Section and inserting the
text "(w) Holdings shall at all times own directly 100% of the Equity Interests
of Intermediate Holdco, (x) Intermediate Holdco" in lieu thereof and (ii)
inserting the text "Corporate Holdco and" immediately prior to the text "the
U.S. Borrower (other than Qualified" appearing in said Section.
16. Section 8.15(a) of the Credit Agreement is hereby amended by inserting
the text "; provided however that so long as the Maximum Permitted Consideration
payable in connection with the proposed Permitted Acquisition, when combined
with the Maximum Permitted Consideration paid in connection with all other
Permitted Acquisitions consummated in the same Fiscal Quarter as such proposed
Permitted Acquisition, does not exceed $25,000,000, the officer's certificate
required to be delivered pursuant to clause (xii) above shall not be required to
include the calculations required by clauses (iii) and (iv) above" immediately
preceding the period at the end of said Section.
17. Section 8.20 of the Credit Agreement is hereby amended by (i) deleting
the text "U.S. Borrower" appearing in clause (a) of said Section and inserting
the text
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"Intermediate Holdco" in lieu thereof, (ii) inserting the text ", in each case
except to the extent received in connection with an Excluded Equity Event"
immediately prior to the period at the end of clause (a) of said Section and
(iii) inserting the following new clause (d) at the end of said Section:
"(d) Intermediate Holdco will contribute as an equity contribution to
the capital of the U.S. Borrower upon its receipt thereof, any cash
proceeds (net of reasonable costs associated with such sale or issuance)
received by Intermediate Holdco from any sale or issuance of its Equity
Interests or any cash capital contributions received by Intermediate
Holdco, in each case except to the extent received in connection with an
Excluded Equity Event.".
18. Section 9.01(b) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 9.01(b) in
lieu thereof:
"(b) Notwithstanding the foregoing, Holdings will not engage in any
business and will not own any significant assets (other than its ownership
of (x) the Equity Interests of Intermediate Holdco, (y) Intercompany Notes
evidencing intercompany loans permitted to be made by it pursuant to
Section 9.05 and (z) after the issuance thereof, the Equity Interests of
each of the Unrestricted Wellbeing Joint Ventures) or have any liabilities
(other than those liabilities for which it is responsible under this
Agreement, the Documents to which it is a party, any Shareholder
Subordinated Note and any Intercompany Note evidencing an intercompany loan
permitted to be incurred by Holdings pursuant to Section 9.05); provided
that Holdings may (i) issue Shareholder Subordinated Notes, shares of
Holdings Common Stock and options and warrants to purchase Holdings Common
Stock, (ii) engage in those activities associated with expenses indirectly
paid with Dividends made to it by Intermediate Holdco pursuant to Section
9.06(iv), (iii) engage in those activities associated with the purchase and
ownership of the Equity Interests of the Unrestricted Wellbeing Joint
Ventures permitted pursuant to Section 9.05(xxiv) and (iv) engage in those
activities that are incidental to (x) the maintenance of its corporate
existence in compliance with applicable law, (y) legal, tax and accounting
matters in connection with any of the foregoing activities and (z) the
entering into, and performing its obligations under, this Agreement and the
other Documents to which it is a party.".
19. Section 9.01 of the Credit Agreement is hereby further amended by
inserting the following new clauses (i), (j) and (k) immediately following
clause (h) of said Section:
"(i) Holdings shall not permit any Unrestricted Wellbeing Joint
Venture to engage in any business other than the development, construction
and operation of a well being center/hotel/spa/conference center/studio and
reasonably related extensions thereof (including the promotion of
nutritional education, production and distribution of nutrition- or
health-oriented programming on cable television and the sale of educational
videos).
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(j) Notwithstanding the foregoing, Intermediate Holdco will not engage
in any business and will not own any significant assets (other than its
ownership of the capital stock of the U.S. Borrower and Corporate Holdco
and Intercompany Notes evidencing intercompany loans permitted to be made
by it pursuant to Section 9.05) or have any liabilities (other than those
liabilities for which it is responsible under this Agreement, the Documents
to which it is a party and any Intercompany Note evidencing an intercompany
loan permitted to be incurred by it pursuant to Section 9.05); provided
that Intermediate Holdco may (i) engage in those activities associated with
expenses paid with Dividends made by the U.S. Borrower pursuant to Section
9.06(iv) and (ii) engage in those activities that are incidental to (x) the
maintenance of its corporate existence in compliance with applicable law,
(y) legal, tax and accounting matters in connection with any of the
foregoing activities and (z) the entering into, and performing its
obligations under, this Agreement and the other Documents to which it is a
party.
(k) Notwithstanding the foregoing, Corporate Holdco will not engage in
any business and will not own any significant assets or have any
liabilities (other than those liabilities for which it is responsible under
this Agreement and the Documents to which it is a party); provided that
Corporate Holdco may (i) engage in those activities associated with
expenses indirectly paid with Dividends made by the U.S. Borrower pursuant
to Section 9.06(iv) and (ii) engage in those activities that are incidental
to (x) the maintenance of its corporate existence in compliance with
applicable law, (y) legal, tax and accounting matters in connection with
any of the foregoing activities and (z) the entering into, and performing
its obligations under, this Agreement and the other Documents to which it
is a party.".
20. Section 9.02(viii) of the Credit Agreement is hereby amended by
deleting the text "(other than Holdings)" appearing in said Section and
inserting the text "(other than Holdings, Intermediate Holdco and Corporate
Holdco)" in lieu thereof.
21. Section 9.02(xviii) of the Credit Agreement is hereby amended by
deleting the text "as required by Section 4.02(c); and" appearing in said
Section and inserting the text "as, and to the extent, required by Section
4.02(c);" in lieu thereof.
22. Section 9.02(xix) of the Credit Agreement is hereby amended by deleting
the text "in accordance with the requirements of Section 4.02(c) (without giving
effect to any reinvestment rights contained therein)." appearing in said Section
and inserting the text "as, and to the extent, required by Section 4.02(c) (but
without giving effect to any reinvestment rights contained therein); and" in
lieu thereof.
23. Section 9.02 of the Credit Agreement is hereby further amended by
inserting the following new clause (xx) immediately following clause (xix) of
said Section:
"(xx) any U.S. Credit Party (other than Holdings, Intermediate Holdco
and Corporate Holdco) and any Castle & Xxxxx Affiliate may effectuate a
"like-kind-exchange of assets" (as such term is defined in the Code)
pursuant to which (x) such Castle & Xxxxx Affiliate shall transfer to such
U.S. Credit Party title to the Westlake Village Property and (y) such U.S.
Credit Party shall transfer to such Castle & Xxxxx
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Affiliate title to Real Property owned by such U.S. Credit Party (the
"Westlake Transfer Property") with a Fair Market Value equal to the Fair
Market Value of the Westlake Village Property, in each case as determined
in good faith by the U.S. Borrower; provided that (A) no consideration
(other than the Westlake Transfer Property) shall be payable by any U.S.
Credit Party to any Castle & Xxxxx Affiliate in connection with such
transaction and (B) within 30 days of such "like-kind-exchange" (or such
later date agreed to by the Collateral Agent in its sole discretion) (1)
the relevant U.S. Credit Party shall grant to the Collateral Agent a
mortgage in the Westlake Village Property pursuant to documentation
substantially in the form of a relevant existing Mortgage (or in such other
form as is reasonably satisfactory to the Administrative Agent) which shall
constitute a valid and enforceable first priority perfected Lien, superior
to and prior to the rights of all third Persons and subject to no other
Liens (except as permitted by Section 9.03) in favor of the Collateral
Agent (or such other trustee or sub-agent as may be required or desired
under local law), (2) such documentation shall be duly recorded or filed in
such manner and in such places as are required by law to create, maintain,
effect, preserve, maintain and protect the Lien in favor of the Collateral
Agent required to be granted pursuant to such documentation and (3) all
taxes, fees and other charges payable in connection therewith shall be paid
in full (it being understood and agreed that failure to comply with
preceding subclause (B) within the time frame required thereby shall, after
30 days written notice from the Collateral Agent and failure to cure,
constitute an Event of Default for all purposes of the Credit Documents).".
24. Section 9.04(v) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 9.04(v) in
lieu thereof:
"(v) intercompany Indebtedness of (w) the U.S. Borrower and its
Subsidiaries to the extent permitted by Sections 9.05(vi) and (xvii), (x)
the U.S. Borrower owed to Intermediate Holdco to the extent permitted by
Section 9.05(xxvi), (y) Intermediate Holdco owed to the U.S. Borrower or
Holdings to the extent permitted by Section 9.05(xxv) or (xxvi), as the
case may be, and (z) Holdings owed to Intermediate Holdco to the extent
permitted by Section 9.05(xxv);".
25. Section 9.04(xvi) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (IV) of said Section and
inserting a comma in lieu thereof and (ii) inserting the following text
immediately preceding the semi-colon at the end of said Section:
", (VI) unsecured Indebtedness of Holdings under the Holdings Senior Notes
and the other Holdings Senior Notes Documents in an aggregate principal
amount at any time outstanding not to exceed, when added to the aggregate
outstanding principal amount of the Indebtedness of Intermediate Holdco
under the Intermediate Holdco Senior Notes Documents at such time,
$250,000,000 (as such amount may be reduced by any repayments of principal
of the Holdings Senior Notes and/or the Intermediate Holdco Senior Notes),
so long as (A) such Indebtedness is incurred in accordance with the
requirements of the definition of "Holdings Senior Notes" and (B) promptly
(and, in any event, within 30 days) following the incurrence thereof, the
Net Cash Proceeds of such Indebtedness shall have been (I) loaned and/or
contributed to Intermediate Holdco, and in
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turn loaned and/or contributed by Intermediate Holdco to the U.S. Borrower,
for application to the repayment of Revolving Loans or for other working
capital or general corporate purposes and/or (II) Invested in one or more
of the Unrestricted Wellbeing Joint Ventures in accordance with the
requirements of Section 9.05(xxiv) and (VII) unsecured Indebtedness of
Intermediate Holdco and Corporate Holdco (as co-issuers) under the
Intermediate Holdco Senior Notes and the other Intermediate Holdco Senior
Notes Documents in an aggregate principal amount at any time outstanding
not to exceed, when added to the aggregate outstanding principal amount of
the Indebtedness of Holdings under the Holdings Senior Notes Documents at
such time, $250,000,000 (as such amount may be reduced by any repayments of
principal of the Intermediate Holdco Senior Notes and/or the Holdings
Senior Notes), so long as (A) such Indebtedness is incurred in accordance
with the requirements of the definition of "Intermediate Holdco Senior
Notes" and (B) promptly (and, in any event, within 30 days) following the
incurrence thereof, the Net Cash Proceeds of such Indebtedness shall have
been (I) loaned and/or contributed by Intermediate Holdco to the U.S.
Borrower for application to the repayment of Revolving Loans or for other
working capital or general corporate purposes and/or (II) loaned and/or
Dividended by Intermediate Holdco to Holdings, which in turn shall have
Invested the proceeds of such loan or Dividend in one or more of the
Unrestricted Wellbeing Joint Ventures in accordance with the requirements
of Section 9.05(xxiv)".
26. Section 9.04 of the Credit Agreement is hereby further amended by
inserting the following new paragraph at the end of said Section:
"In addition, notwithstanding anything to the contrary contained above, (x)
in no event shall any Subsidiary of Holdings or any Unrestricted Wellbeing
Joint Venture guarantee any Indebtedness of Holdings under any Holdings
Senior Notes Document, (y) in no event shall Holdings, any Subsidiary of
Intermediate Holdco (other than Corporate Holdco) or any Unrestricted
Wellbeing Joint Venture guarantee any Indebtedness of Intermediate Holdco
or Corporate Holdco under any Intermediate Holdco Senior Notes Document and
(z) Holdings shall not permit any Unrestricted Wellbeing Joint Venture to
incur any Indebtedness or any other obligation having any element of
recourse to Holdings or any of its Subsidiaries or to any of its or its
Subsidiaries' assets or properties.".
27. Section 9.05(i) of the Credit Agreement is hereby amended by (i)
inserting the text "(w)" immediately preceding the first instance of the text
"the U.S. Borrower" appearing in said Section and (ii) inserting the following
text immediately preceding the semi-colon at the end of said Section:
", (x) Intermediate Holdco may hold cash and Cash Equivalents (I) in a de
minimis amount representing proceeds from the initial capital contribution
made in connection with its formation and (II) representing the proceeds of
any Indebtedness permitted to be incurred, or Dividends permitted to be
received, by it pursuant to the terms of this Agreement, so long as (in the
case of preceding subclause (II)) Intermediate Holdco utilizes such cash
and/or Cash Equivalents within the time periods required, and for the
purposes permitted, by this Agreement, (y) Corporate Holdco may hold cash
and Cash Equivalents in a de minimis amount representing proceeds from the
initial capital contribution made in connection with its formation and (z)
Holdings may hold cash and Cash
-11-
Equivalents (I) in a de minimis amount representing proceeds from the
initial capital contribution made in connection with its formation and (II)
representing the proceeds of any Indebtedness permitted to be incurred, or
Dividends permitted to be received, by it pursuant to the terms of this
Agreement, so long as (in the case of preceding subclause (II)) Holdings
utilizes such cash or Cash Equivalents within the time periods required,
and for the purposes permitted, by this Agreement".
28. Section 9.05 of the Credit Agreement is further hereby amended by (i)
deleting the text "(other than Holdings)" in each place such text appears in
clause (vi) of said Section and inserting the text "(other than Holdings,
Intermediate Holdco and Corporate Holdco)" in lieu thereof, (ii) deleting the
word "and" appearing at the end of clause (xxii) of said Section, (iii) deleting
the period appearing at the end of clause (xxiii) of said Section and inserting
a semi-colon in lieu thereof and (iv) inserting the following new clauses
(xxiv), (xxv) and (xxvi) immediately following clause (xxiii) of said Section:
"(xxiv) so long as no Default or Event of Default then exists or would
result therefrom, Holdings may from time to time (I) make cash common
equity contributions, and/or intercompany loans to, Westlake Wellbeing
Company, (II) contribute the Westlake Village Property as a common equity
contribution to Westlake Wellbeing Company, and (III) make cash common
equity contributions, and/or intercompany loans, to Wellbeing IP Holdco
and/or Wellbeing Edco; provided that (x) Holdings shall at all times own or
hold at least 85% of the Equity Interests of Westlake Wellbeing Company (on
a fully diluted basis) and at least 50% of the Equity Interests of each of
Wellbeing IP Holdco and Wellbeing Edco (on a fully diluted basis), (y) all
of the Equity Interests of each of the Unrestricted Wellbeing Joint
Ventures held by Holdings shall have been delivered and pledged by Holdings
to the Collateral Agent pursuant to the U.S. Pledge Agreement, and (z) each
Investment made by Holdings pursuant to this clause (xxiv) in the form of
an intercompany loan shall be evidenced by an Intercompany Note pledged to
the Collateral Agent pursuant to the U.S. Pledge Agreement;
(xxv) the U.S. Borrower may make intercompany loans to Intermediate
Holdco, and Intermediate Holdco may make intercompany loans to Holdings, at
the times and for the purposes described below, so long as (i) no Default
or Event of Default then exists or would result therefrom, (ii) the Total
Unutilized Revolving Loan Commitment shall equal or exceed $35,000,000
immediately after giving effect to each such intercompany loan (and any
related Dividend made pursuant to Section 9.06(x)), (iii) each such
intercompany loan is permitted pursuant to the terms of the Existing Senior
Notes Documents, the New Senior Notes Documents, the New 2010 Senior Notes
Documents and, on and after the execution and delivery thereof, the
Holdings Senior Notes Documents and the Intermediate Holdco Senior Notes
Documents, (iv) no such intercompany loan by the U.S. Borrower to
Intermediate Holdco shall be made, unless the proceeds thereof are promptly
(and in any event within 5 Business Days of the making of such intercompany
loan) (A) on-loaned by Intermediate Holdco to Holdings for use within the
time periods required by, and for the purposes described in, immediately
succeeding clause (v), (B) Dividended by Intermediate Holdco to Holdings
-12-
for use within the time periods required by, and for the purposes described
in, Section 9.06(x)(v) or (C) utilized by Intermediate Holdco to pay
regularly scheduled interest on the Intermediate Holdco Senior Notes when
and as due in accordance with the requirements of the Intermediate Holdco
Senior Notes Documents, (v) the proceeds of each such intercompany loan
received by Holdings shall be utilized by Holdings promptly (and, in any
event, within 30 days of the receipt of such proceeds) to make an
Investment in one or more Unrestricted Wellbeing Joint Ventures pursuant to
Section 9.05(xxiv) for the purposes of financing the construction and
start-up of the Wellbeing Project and/or the operations of the Unrestricted
Wellbeing Joint Ventures, and (vi) each such intercompany loan shall be
evidenced by an Intercompany Note pledged by the U.S. Borrower or
Intermediate Holdco, as the case may be, to the Collateral Agent pursuant
to the U.S. Pledge Agreement; and
(xxvi) (x) Intermediate Holdco may make intercompany loans to the U.S.
Borrower with the proceeds from (I) the incurrence of the Intermediate
Holdco Senior Notes or (II) any Investment made in it by Holdings with the
proceeds of Holdings Senior Notes or an Excluded Equity Event, so long as
each such intercompany loan shall be evidenced by an Intercompany Note
pledged by Intermediate Holdco to the Collateral Agent pursuant to the U.S.
Pledge Agreement and (y) Holdings may make intercompany loans to
Intermediate Holdco with the proceeds from (I) the incurrence of the
Holdings Senior Notes or (II) any Excluded Equity Event, so long as each
such intercompany loan shall be evidenced by an Intercompany Note pledged
by Intermediate Holdco to the Collateral Agent pursuant to the U.S. Pledge
Agreement.".
29. Section 9.06 of the Credit Agreement is hereby amended by deleting
clauses (iii), (iv) and (v) of said Section in their entirety and inserting the
following new clauses (iii), (iv) and (v) in lieu thereof:
"(iii) (A) the U.S. Borrower may pay cash Dividends to Intermediate
Holdco, so long as (x) no Specified Default or Event of Default then exists
or would result therefrom and (y) the cash proceeds thereof are promptly
used by Intermediate Holdco to pay the cash Dividend described in
succeeding clause (B) and (B) Intermediate Holdco may pay cash Dividends to
Holdings, so long as (x) no Specified Default or Event of Default then
exists or would result therefrom and (y) the cash proceeds thereof are
promptly used by Holdings for the purposes described in Section 9.06(ii);
(iv) (A) the U.S. Borrower may pay cash Dividends to Intermediate
Holdco, so long as the proceeds thereof are promptly used by Intermediate
Holdco to pay its operating expenses in the ordinary course of business
(including, without limitation, professional fees and expenses) and other
similar corporate overhead costs and expenses, (B) the U.S. Borrower may
pay cash Dividends to Intermediate Holdco, so long as Intermediate Holdco
promptly contributes such proceeds to Corporate Holdco and the proceeds of
such contribution are promptly used by Corporate Holdco to pay its
operating expenses in the ordinary course of business (including, without
limitation, professional fees and expenses) and other similar corporate
overhead costs and expenses, and (C) the U.S. Borrower may pay cash
Dividends to Intermediate Holdco, which, in turn, may pay cash Dividends to
Holdings, so long as the proceeds thereof are promptly used by
-13-
Holdings to pay operating expenses in the ordinary course of its business
(including, without limitation, professional fees and expenses) and other
similar corporate overhead costs and expenses;
(v) the U.S. Borrower may pay cash Dividends to Intermediate Holdco,
and Intermediate Holdco may in turn pay cash Dividends to Holdings, in the
amounts and at the times of any payment by Holdings in respect of its taxes
(or taxes of its consolidated group), provided that (x) the amount of cash
Dividends paid pursuant to this clause (v) to enable Holdings to pay taxes
at any time shall not exceed the amount of such taxes owing by Holdings at
such time and (y) any refunds received by Holdings attributable to the U.S.
Borrower or any of its Subsidiaries shall be promptly returned by Holdings
to Intermediate Holdco, and, in turn, by Intermediate Holdco to the U.S.
Borrower, provided further that (A) in no event shall the amount of
Dividends paid by the U.S. Borrower and its Subsidiaries pursuant to this
clause (v) in respect of any taxable year for which the U.S. Borrower and
any of its Subsidiaries are included in a consolidated federal income tax
return, or a consolidated, combined or unitary state or local tax return
with any Person other than the U.S. Borrower and its Subsidiaries (such
other Person or Persons included in such returns, together with the U.S.
Borrower and its Subsidiaries, the "Affiliated Group") exceed, in the
aggregate, the lesser of (I) the amount of such federal income tax or state
or local tax, as the case may be (the "Relevant Separate Tax Liability"),
that the U.S. Borrower and its Subsidiaries would have been obligated to
pay if the U.S. Borrower and its Subsidiaries had filed a separate
consolidated federal income tax return or a separate consolidated, combined
or unitary state or local tax return, as the case may be, for such year and
all prior taxable years (with the U.S. Borrower as the common parent of
such affiliated group) and (II) the product of (a) the federal income or
state or local tax liability, as the case may be, of the Affiliated Group
for such year and (b) a fraction, (x) the numerator of which is an amount
equal to the Relevant Separate Tax Liability of the U.S. Borrower and its
Subsidiaries for such year and (y) the denominator of which is the
aggregate of the total separate federal income, state or local tax
liability, as the case may be, that each member of the Affiliated Group
(treating the U.S. Borrower and its Subsidiaries as a single member and all
other members of the Affiliated Group as one separate member) would have
incurred for such year if such members had filed separate federal income
tax returns or separate consolidated, combined or unitary state or local
tax returns, as the case may be, for such year and all prior taxable years
and (B) each Unrestricted Wellbeing Joint Venture shall be required to
distribute to Holdings (and shall concurrently or prior to any payment of
any Dividend by the U.S. Borrower pursuant to this Section 9.06(v) have
distributed to Holdings) its allocable share (as reasonably determined by
Holdings in good faith) of all tax liabilities of Holdings and its
consolidated Subsidiaries;".
30. Section 9.06(vii) of the Credit Agreement is hereby amended by (i)
deleting the text "the U.S. Borrower" appearing in said Section and inserting
the text "Holdings" in lieu thereof and (ii) inserting the following proviso
prior to the semi-colon at the end of said Section:
" provided that, in no event shall the U.S. Borrower be permitted to repay
any Intercompany Debt incurred by it from Intermediate Holdco pursuant to
Section
-14-
9.05(xxvi), unless the conditions set forth in subclauses (i), (ii), (iii)
and (iv) of Section 9.06(x) shall have been satisfied at such time (for
such purposes, treating each reference to the making of a Dividend in said
subclauses as if it were a reference to the repayment of such Intercompany
Debt)".
31. Section 9.06 of the Credit Agreement is hereby further amended by (i)
deleting the word "and" appearing at the end of clause (viii) of said Section,
(ii) deleting the period appearing at the end of clause (ix) of said Section and
inserting a semi-colon in lieu thereof and (iii) inserting the following new
clauses (x) and (xi) immediately following clause (ix) of said Section:
"(x) the U.S. Borrower may pay cash Dividends to Intermediate Holdco,
and Intermediate Holdco may pay cash Dividends to Holdings, at the times
and for the purposes described below, so long as (i) no Default or Event of
Default then exists or would result therefrom, (ii) the Total Unutilized
Revolving Loan Commitment shall equal or exceed $35,000,000 immediately
after giving effect to each such Dividend (and any related intercompany
loan made pursuant to Section 9.05(xxv)), (iii) each such Dividend is
permitted pursuant to the terms of the Existing Senior Notes Documents, the
New Senior Notes Documents and the New 2010 Senior Notes Documents, (iv) no
such Dividend by the U.S. Borrower to Intermediate Holdco shall be paid,
unless the proceeds thereof are promptly (and in any event within 5
Business Days of the payment of such Dividend) (A) Dividended by
Intermediate Holdco to Holdings for use within the time periods required
by, and for the purposes described in, immediately succeeding clause (v),
(B) on-loaned by Intermediate Holdco to Holdings for use within the time
periods required by, and for the purposes described in, Section
9.05(xxv)(v) or (C) utilized by Intermediate Holdco to pay regularly
scheduled interest on the Intermediate Holdco Senior Notes when and as due
in accordance with the requirements of the Intermediate Holdco Senior Notes
Documents and (v) the proceeds of each such Dividend received by Holdings
shall be utilized by Holdings promptly (and, in any event, within 30 days
of the payment of such Dividend) to make an Investment in one or more
Unrestricted Wellbeing Joint Ventures pursuant to Section 9.05(xxiv) for
the purposes of financing the construction and start-up of the Wellbeing
Project and/or the operations of the Unrestricted Wellbeing Joint Ventures;
and
(xi) the U.S. Borrower may Dividend the Westlake Village Property (and
title thereto) to Intermediate Holdco, and Intermediate Holdco may in turn
Dividend the Westlake Village Property (and title thereto) to Holdings, so
long as (i) no Default or Event of Default then exists or would result
therefrom, (ii) such transfer is permitted pursuant to the terms of the
Existing Senior Notes Documents, the New Senior Notes Documents, the New
2010 Senior Notes Documents and, on and after the execution and delivery
thereof, the Holdings Senior Notes Documents and the Intermediate Holdco
Senior Notes Documents (including, without limitation, each of the
restricted payments limitations contained therein); and (iii) immediately
following such Dividends, the Westlake Village Property is contributed by
Holdings as a common equity contribution to Westlake Wellbeing Company
pursuant to Section 9.05(xxiv).".
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32. Section 9.07 of the Credit Agreement is hereby amended by (i) deleting
the word "and" appearing at the end of clause (vii) of the first sentence of
said Section and (ii) inserting the following text immediately prior to the
period at the end of the first sentence appearing in said Section:
"; and (ix) the U.S. Borrower or any of its Subsidiaries may lease (as
lessor) the Westlake Village Property to Westlake Wellbeing Company, on any
terms agreed to by such parties".
33. Sections 9.08, 9.09, 9.10, 9.11 and 9.13 of the Credit Agreement are
hereby amended by inserting the text "and the U.S. Borrower" immediately
following the first instance of the text "Holdings" appearing in said Sections.
34. Section 9.12 of the Credit Agreement is hereby amended by inserting the
text "(or, after the Fourth Amendment Effective Date, the U.S. Borrower instead
of Holdings)" immediately following the first instance of the text "Holdings"
appearing in said Section.
35. Section 9.14(a)(i) of the Credit Agreement is hereby amended by
deleting the text "or Permitted Acquired Debt; provided that" appearing in said
Section and inserting the text ", Permitted Acquired Debt, Holdings Senior Notes
or Intermediate Holdco Senior Notes; provided that (t) the Holdings Senior Notes
may be exchanged for Holdings Exchange Senior Notes in accordance with the
requirements of the respective definitions thereof and the relevant provisions
of this Agreement, (u) the Intermediate Holdco Senior Notes may be exchanged for
Intermediate Holdco Exchange Senior Notes in accordance with the requirements of
the respective definitions thereof and the relevant provisions of this
Agreement," in lieu thereof.
36. Section 9.14(a)(ii) of the Credit Agreement is hereby amended by
deleting the text "or any Existing Senior Notes Document," appearing in said
Section and inserting the text ", any Existing Senior Notes Document or, on and
after the execution and delivery thereof, any Holdings Senior Notes Document or
any Intermediate Holdco Senior Notes Document, in any such case" in lieu
thereof.
37. Section 9.15(b) of the Credit Agreement is hereby amended by deleting
the text "No Borrower" appearing in the first sentence of said Section and
inserting the text "Neither Intermediate Holdco nor any Borrower" in lieu
thereof.
38. Section 9.16 of the Credit Agreement is hereby amended by (i) deleting
the word "and" appearing at the end of clause (x) of said Section and (ii)
inserting the text "; (xii) on and after the execution and delivery thereof, the
Holdings Senior Notes Documents; and (xiii) on and after the execution and
delivery thereof, the Intermediate Holdco Senior Notes Documents" immediately
preceding the period at the end of said Section.
39. The definition of "Change of Control" appearing in Section 11 of the
Credit Agreement is hereby amended by (i) deleting the word "or" in the second
place such word appears in clause (v) of said definition and inserting a comma
in lieu thereof and (ii) inserting the text "or, on and after the execution and
delivery thereof, any Holdings Senior Notes Documents or any Intermediate Holdco
Senior Notes Documents" immediately preceding the period at the end of said
definition.
-16-
40. The definitions of "Consolidated Current Assets", "Consolidated Current
Liabilities", "Consolidated EBIT", "Consolidated Interest Expense",
"Consolidated Net Income", "Excess Cash Flow" and "Non-U.S. Xxxx Group"
appearing in Section 11 of the Credit Agreement are hereby amended by inserting
the text "(or, after the Fourth Amendment Effective Date, the U.S. Borrower)"
immediately following each instance of the text "of Holdings" appearing in said
definitions.
41. The definition of "Consolidated Debt" appearing in Section 11 of the
Credit Agreement is hereby amended by deleting said definition in its entirety
and inserting the following new definition in lieu thereof:
"Consolidated Debt" shall mean, at any time, the sum of (without
duplication) (i) all Indebtedness of Holdings (or, after the Fourth
Amendment Effective Date, the U.S. Borrower) and its Consolidated
Subsidiaries (on a consolidated basis) as would be required to be reflected
as debt or Capital Leases on the liability side of a consolidated balance
sheet of Holdings (or, after the Fourth Amendment Effective Date, the U.S.
Borrower) and its Consolidated Subsidiaries in accordance with U.S. GAAP,
(ii) all Indebtedness of Holdings (or, after the Fourth Amendment Effective
Date, the U.S. Borrower) and its Consolidated Subsidiaries of the type
described in clauses (ii) and (vii) of the definition of Indebtedness and
(iii) all Contingent Obligations of Holdings (or, after the Fourth
Amendment Effective Date, the U.S. Borrower) and its Consolidated
Subsidiaries in respect of Indebtedness of any third Person of the type
referred to in preceding clauses (i) and (ii); provided that (w) the amount
available to be drawn under all letters of credit, bankers' acceptances,
bank guaranties and similar obligations issued for the account of Holdings
(or, after the Fourth Amendment Effective Date, the U.S. Borrower) or any
of its Consolidated Subsidiaries (but excluding, for avoidance of doubt,
all unpaid drawings or other monetary obligations owing in respect of such
letters of credit, bankers' acceptances, bank guaranties and similar
obligations) shall not be included in any determination of "Consolidated
Debt", (x) for purposes of this definition, the amount of Indebtedness in
respect of the Interest Rate Protection Agreements, Other Hedging
Agreements and Commodities Agreements shall be at any time the unrealized
net loss position, if any, of Holdings (or, after the Fourth Amendment
Effective Date, the U.S. Borrower) and/or its Consolidated Subsidiaries
thereunder on a marked-to-market basis determined no more than one month
prior to such time, (y) obligations arising under Synthetic Leases shall be
included in determining Consolidated Debt (other than (I) obligations under
the HQ Lease Agreements, to the extent such obligations are outstanding
under Section 9.04(xxii) and (II) successive refinancings of the
obligations described in preceding clause (I), to the extent such
obligations are outstanding under Section 9.04(vii)) and (z) any Preferred
Equity of Holdings (or, after the Fourth Amendment Effective Date, the U.S.
Borrower) or any of its Consolidated Subsidiaries (but excluding any
Qualified Preferred Stock) shall be treated as Indebtedness, with an amount
equal to the greater of the liquidation preference or the maximum fixed
repurchase price of any such outstanding Preferred Equity deemed to be a
component of Consolidated Debt.
-17-
42. The definition of "Consolidated Fixed Charges" appearing in Section 11
of the Credit Agreement is hereby amended by deleting said definition in its
entirety and inserting the following new definition in lieu thereof:
"Consolidated Fixed Charges" shall mean, for any period, the sum of
(i) Consolidated Interest Expense for such period, (ii) the scheduled
principal amount of all amortization payments on all Indebtedness
(including the principal component of all Capitalized Lease Obligations but
excluding payments pursuant to the Refinancing) of Holdings (or, after the
Fourth Amendment Effective Date, the U.S. Borrower) and its Consolidated
Subsidiaries for such period (as determined on the first day of the
respective period), (iii) the amount of all Capital Expenditures made by
Holdings (or, after the Fourth Amendment Effective Date, the U.S. Borrower)
and its Consolidated Subsidiaries during such period (other than Capital
Expenditures made pursuant to Section 9.12(c), (d) or (e)), (iv) all
Dividends (excluding dividends paid in kind through the issuance of
additional shares of capital stock of Holdings (or, after the Fourth
Amendment Effective Date, the U.S. Borrower)) actually paid by Holdings
(or, after the Fourth Amendment Effective Date, the U.S. Borrower on or
with respect to Preferred Equity) during such period and (v) the amount of
all cash payments made by Holdings (or, after the Fourth Amendment
Effective Date, the U.S. Borrower) and its Consolidated Subsidiaries during
such period in respect of income taxes or income tax liabilities, net of
any refunds received during such period.
43. The definition of "Credit Agreement Party" appearing in Section 11 of
the Credit Agreement is hereby amended by inserting the text ", Intermediate
Holdco" immediately after the text "Holdings" appearing in said definition.
44. The definition of "Documents" appearing in Section 11 of the Credit
Agreement is hereby amended by (i) deleting the word "and" appearing at the end
of clause (ix) of said definition and (ii) inserting the text ", (xi) on and
after the execution and delivery thereof, the Holdings Senior Notes Documents
and (xii) on and after the execution and delivery thereof, the Intermediate
Holdco Senior Notes Documents" immediately preceding the period at the end of
said definition.
45. The definition of "Excess Cash Flow" appearing in Section 11 of the
Credit Agreement is hereby further amended by inserting the text "(or, after the
Fourth Amendment Effective Date, the U.S. Borrower)" immediately following the
text "by Holdings" appearing in said definition.
46. The definition of "Incremental Loan Commitment Request Requirement"
appearing in Section 11 of the Credit Agreement is hereby amended by inserting
the text "(and, after the Fourth Amendment Effective Date, the U.S. Borrower
instead of Holdings)" immediately following the word "Holdings" appearing in
clause (y) of said definition.
47. The definition of "Incremental Loan Commitment Requirements" appearing
in Section 11 of the Credit Agreement is hereby amended by (i) inserting the
text "or the U.S. Borrower" immediately following the text "calculations are
made by Holdings" appearing in clause (s) of said definition and (ii) deleting
each instance of the text "and the New
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Senior Notes Indenture" appearing in clause (u) of said definition and inserting
the text ", the New Senior Notes Indenture and (after the execution and delivery
thereof) the Holdings Senior Notes Indenture and the Intermediate Holdco Senior
Notes Indenture" in lieu thereof.
48. The definition of "Intercompany Note" appearing in Section 11 of the
Credit Agreement is hereby amended by deleting the text "Section 9.05(vi)"
appearing in said definition and inserting the text "Sections 9.05(vi), (xxv)
and (xxvi)" in lieu thereof.
49. The definition of "Subsidiary" appearing in Section 11 of the Credit
Agreement is hereby amended by inserting the following new sentence at the end
of said definition:
"Notwithstanding the foregoing (and except for purposes of Sections 7.01,
7.03, 7.04, 7.12, 7.16, 7.17, 7.20, 8.01(f), 8.01(h), 8.04, 8.05, 8.06,
8.07, 8.08, 8.16, 10.03(b), 10.04, 10.05, 10.06, 10.09 and 13.01), an
Unrestricted Wellbeing Joint Venture shall be deemed not to be a Subsidiary
of Holdings or any of its other Subsidiaries for purposes of this
Agreement.".
50. The definition of "Subsidiary Guarantor" appearing in Section 11 of the
Credit Agreement is hereby amended by deleting the text "the U.S. Borrower"
appearing in said definition and inserting the text "Intermediate Holdco" in
lieu thereof.
51. The definition of "U.S. Credit Party" appearing in Section 11 of the
Credit Agreement is hereby amended by inserting the text ", Intermediate Holdco"
immediately after the text "Holdings" appearing in said Section.
52. The definition of "U.S. Xxxx Group" appearing in Section 11 of the
Credit Agreement is hereby amended by inserting the text "(prior to the Fourth
Amendment Effective Date)" immediately following the word "Holdings" appearing
in said definition.
53. The definition of "U.S. Subsidiary Guaranty" appearing in Section 11 of
the Credit Agreement is hereby amended by inserting the text "or Corporate
Holdco pursuant to Section 1 of the Fourth Amendment" immediately prior to the
period appearing at the end of said definition.
54. The definition of "U.S. Subsidiary Guarantor" appearing in Section 11
of the Credit Agreement is hereby amended by (i) deleting the second reference
to "the U.S. Borrower" appearing in said definition and inserting the text
"Intermediate Holdco" in lieu thereof and (ii) inserting the following proviso
immediately prior to the period at the end of said definition:
"provided, that for purposes of Sections 9.02(ix), 9.02(xiii), 9.04(xvi),
9.05(ix) and 9.12(e) and the definition of "U.S. Xxxx Group", the term
"U.S. Subsidiary Guarantor" (and any term incorporating such term by
reference) shall not include Corporate Holdco".
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55. Section 11 of the Credit Agreement is hereby further amended by (i)
deleting the definitions "Guarantors", "Guaranty" and "Holdings Business
Condition" appearing in said Section and (ii) inserting the following new
definitions in appropriate alphabetical order:
"Castle & Xxxxx Affiliate" shall mean Castle & Xxxxx Inc. or any of
its Affiliates.
"Corporate Holdco" shall mean Xxxx Holding Company, Inc., a Delaware
corporation and a Wholly-Owned Subsidiary of Intermediate Holdco.
"Excluded Equity Event" shall mean (i) in the case of Holdings, the
sale or issuance of Equity Interests of Holdings to, or a capital
contribution to Holdings by, Xxxxx X. Xxxxxxx or any of his affiliates and
(ii) in the case of Intermediate Holdco, the sale or issuance of Equity
Interests of Intermediate Holdco to, or a capital contribution to
Intermediate Holdco by, Holdings which is financed by Holdings solely with
the proceeds of the sale or issuance of Equity Interests and/or capital
contributions described in preceding clause (i), in any such case to the
extent (and only to the extent) the net cash proceeds from such sale,
issuance or contribution are promptly used (x) in the case of Holdings, to
pay regularly scheduled interest on Holdings Senior Notes when and as due
or to make a purchase or contribution to Intermediate Holdco as described
in clause (ii) above or (y) in the case of Intermediate Holdco, to pay
regularly scheduled interest on Intermediate Holdco Senior Notes when and
as due.
"Fourth Amendment" shall mean the Fourth Amendment to this Agreement,
dated as of February [_], 2004.
"Fourth Amendment Effective Date" shall have the meaning provided in
the Fourth Amendment.
"Guarantors" shall mean and include Holdings, Intermediate Holdco, the
U.S. Borrower and each Subsidiary Guarantor.
"Guaranty" shall mean and include the Holdings Guaranty, the
Intermediate Holdco Guaranty, the U.S. Borrower's Guaranty and each
Subsidiaries Guaranty.
"Holdings Exchange Senior Notes" shall mean senior notes issued by
Holdings pursuant to a registered exchange offer or private exchange offer
for the Holdings Senior Notes and pursuant to the Holdings Senior Notes
Indenture, which senior notes are substantially identical securities to the
Holdings Senior Notes. In no event will the issuance of any Holdings
Exchange Senior Notes increase the aggregate principal amount of the
Holdings Senior Notes then outstanding or otherwise result in an increase
in the interest rate applicable to the Holdings Senior Notes.
"Holdings Senior Notes" shall mean any Indebtedness of Holdings
evidenced by senior notes so long as (a) such Indebtedness has a final
maturity no earlier than the date occurring 12 months after the Tranche C
Term Loan Maturity Date, (b) such Indebtedness does not provide for
guaranties or security, and (c) all other terms of such Indebtedness
(including, without limitation, with respect to amortization, redemption
provisions, maturities, covenants, and defaults), are not, taken as a
whole, less favorable in any material respect to Holdings and its
Subsidiaries than those applicable to the U.S. Borrower and its
Subsidiaries and contained in the New Senior Notes Documents, as such
Indebtedness may be amended, modified or supplemented from time to time in
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accordance with the terms hereof and thereof. The issuance of Holdings
Senior Notes shall be deemed to be a representation and warranty by
Holdings that all conditions thereto have been satisfied in all material
respects and that same is permitted in accordance with the terms of this
Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Sections 6B.01 and 10. As used herein, the term "Holdings
Senior Notes" shall include any Holdings Exchange Senior Notes issued
pursuant to the Holdings Senior Notes Indenture in exchange for theretofore
outstanding Holdings Senior Notes, as contemplated by the definition of
Holdings Exchange Senior Notes.
"Holdings Senior Notes Documents" shall mean the Holdings Senior Notes
Indenture, the Holdings Senior Notes and each other agreement, document or
instrument relating to the issuance of the Holdings Senior Notes, as the
same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Holdings Senior Notes Indenture" shall mean any indenture or similar
agreement entered into in connection with the issuance of Holdings Senior
Notes, as the same may be amended, modified or supplemented from time to
time in accordance with the terms hereof and thereof.
"Intermediate Holdco" shall have the meaning provided in the first
paragraph of this Agreement.
"Intermediate Holdco Exchange Senior Notes" shall mean senior notes
issued by Intermediate Holdco and Corporate Holdco (as co-issuers) pursuant
to a registered exchange offer or private exchange offer for the
Intermediate Holdco Senior Notes and pursuant to the Intermediate Holdco
Senior Notes Indenture, which senior notes are substantially identical
securities to the Intermediate Holdco Senior Notes. In no event will the
issuance of any Intermediate Holdco Exchange Senior Notes increase the
aggregate principal amount of the Intermediate Holdco Senior Notes then
outstanding or otherwise result in an increase in the interest rate
applicable to the Intermediate Holdco Senior Notes.
"Intermediate Holdco Guaranteed Obligations" shall mean (i) the
principal and interest on each Note issued to each Lender, and all Loans
made, under this Agreement, all reimbursement obligations and Unpaid
Drawings with respect to Letters of Credit and all reimbursement
obligations and Unreimbursed Payments with respect to Bank Guaranties,
together with all the other obligations (including obligations which, but
for the automatic stay
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under Section 362(a) of the Bankruptcy Code, would become due) and
liabilities (including, without limitation, indemnities, fees and interest
thereon) of the Borrowers (or either of them) to each Lender, each Agent,
each Issuing Lender, each Bank Guaranty Issuer and the Collateral Agent now
existing or hereafter incurred under, arising out of or in connection with
this Agreement and each other Credit Document and the due performance and
compliance by each Borrower with all the terms, conditions and agreements
contained in this Agreement and each other Credit Document to which it is a
party and (ii) all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become
due) and liabilities of the U.S. Borrower or any of its Subsidiaries owing
under any Interest Rate Protection Agreement or Other Hedging Agreement
entered into by the U.S. Borrower or any of its Subsidiaries with any
Lender or any affiliate thereof (even if such Lender subsequently ceases to
be a Lender under this Agreement for any reason) so long as such Lender or
affiliate participates in such Interest Rate Protection Agreement or Other
Hedging Agreement, and their subsequent assigns, if any, whether now in
existence or hereafter arising, and the due performance and compliance with
all terms, conditions and agreements contained therein.
"Intermediate Holdco Guaranteed Party" shall mean each Borrower and
each Subsidiary of Intermediate Holdco party to any Interest Rate
Protection Agreement or Other Hedging Agreement with any Secured Creditor.
"Intermediate Holdco Guaranty" shall mean the guaranty of Intermediate
Holdco pursuant to Section 16.
"Intermediate Holdco Senior Notes" shall mean any Indebtedness of
Intermediate Holdco and Corporate Holdco (as co-issuers) evidenced by
senior notes so long as (a) such Indebtedness has a final maturity no
earlier than the date occurring 12 months after the Tranche C Term Loan
Maturity Date, (b) such Indebtedness does not provide for guaranties or
security, and (c) all other terms of such Indebtedness (including, without
limitation, with respect to amortization, redemption provisions,
maturities, covenants, and defaults), are not, taken as a whole, less
favorable in any material respect to Intermediate Holdco and its
Subsidiaries than those applicable to the U.S. Borrower and its
Subsidiaries and contained in the New Senior Notes Documents, as such
Indebtedness may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof. The issuance of Intermediate
Holdco Senior Notes shall be deemed to be a representation and warranty by
Intermediate Holdco that all conditions thereto have been satisfied in all
material respects and that same is permitted in accordance with the terms
of this Agreement, which representation and warranty shall be deemed to be
a representation and warranty for all purposes hereunder, including,
without limitation, Sections 6B.01 and 10. As used herein, the term
"Intermediate Holdco Senior Notes" shall include any Intermediate Holdco
Exchange Senior Notes issued pursuant to the Intermediate Holdco Senior
Notes Indenture in exchange for theretofore outstanding Intermediate Holdco
Senior Notes, as contemplated by the definition of Intermediate Holdco
Exchange Senior Notes.
"Intermediate Holdco Senior Notes Documents" shall mean the
Intermediate Holdco Senior Notes Indenture, the Intermediate Holdco Senior
Notes and each other agreement, document or instrument relating to the
issuance of the Intermediate Holdco Senior Notes, as the same may be
amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof.
"Intermediate Holdco Senior Notes Indenture" shall mean any indenture
or similar agreement entered into in connection with the issuance of
Intermediate Holdco
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Senior Notes, as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Parent Business Condition" shall mean, for any quarterly accounting
period or Fiscal Year, (A) Holdings having at all times during such period
(i) owned no significant assets (other than (x) the Equity Interests of
Intermediate Holdco, (y) Intercompany Notes evidencing intercompany loans
permitted to be made by it pursuant to Section 9.05 and (z) the Equity
Interests of the Unrestricted Wellbeing Joint Ventures) and had no
liabilities or Indebtedness (other than those liabilities and Indebtedness
permitted by Section 9.01(b)) and (ii) otherwise complied with the
requirements of Section 9.01(b), (B) Intermediate Holdco having at all
times during such period (i) owned no significant assets (other than the
capital stock of the U.S. Borrower and Corporate Holdco and Intercompany
Notes evidencing intercompany loans permitted to be made by it pursuant to
Section 9.05) and had no liabilities or Indebtedness (other than those
liabilities and Indebtedness permitted by Section 9.01(j)) and (ii)
otherwise complied with the requirements of Section 9.01(j) and (C)
Corporate Holdco having at all times during such period (i) owned no
significant assets and had no liabilities or Indebtedness (other than those
liabilities and Indebtedness permitted by Section 9.01(k)) and (ii)
otherwise complied with the requirements of Section 9.01(k).
"Unrestricted Wellbeing Joint Venture" shall mean Westlake Wellbeing
Company, Wellbeing IP Holdco and Wellbeing Edco.
"Wellbeing Edco" shall mean a Delaware corporation or limited
liability company formed (or to be formed) by Holdings to promote
nutritional and wellbeing education.
"Wellbeing IP Holdco" shall mean a Delaware corporation or limited
liability company formed (or to be formed) by Holdings to hold the
intellectual property rights related to the Wellbeing Project.
"Wellbeing Project" shall mean the start-up, construction and
operation by Westlake Wellbeing Company of a well-being
center/hotel/spa/conference center/studio on the Westlake Village Property.
"Westlake Village Property" shall mean that certain property
identified to the Administrative Agent of twenty (20) acres (more or less)
that is adjacent to the parcel on which the U.S. Borrower's Corporate
Headquarters is located in the City of Westlake Village, Ventura County,
California.
"Westlake Wellbeing Company" shall mean a Delaware limited liability
company formed (or to be formed) by Holdings to construct and operate the
Wellbeing Project and/or promote nutritional and wellbeing education.
56. The Credit Agreement is hereby further amended by inserting the
following new Section 16 immediately after Section 15 thereof:
"SECTION 16. Intermediate Holdco Guaranty.
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16.01 The Guaranty. In order to induce the Lenders to enter into
this Agreement and to extend credit hereunder and to induce the
Lenders or any of their respective Affiliates to enter into Interest
Rate Protection Agreements or Other Hedging Agreements, and in
recognition of the direct benefits to be received by Intermediate
Holdco from the proceeds of the Loans, the issuance of the Letters of
Credit and Bank Guaranties and the entering into of Interest Rate
Protection Agreements or Other Hedging Agreements, Intermediate Holdco
hereby agrees with the Lenders as follows: Intermediate Holdco hereby
unconditionally and irrevocably guarantees, as primary obligor and not
merely as surety the full and prompt payment when due, whether upon
maturity, acceleration or otherwise, of any and all of the
Intermediate Holdco Guaranteed Obligations to the Guaranteed
Creditors. If any or all of the Intermediate Holdco Guaranteed
Obligations to the Guaranteed Creditors becomes due and payable
hereunder, Intermediate Holdco unconditionally promises to pay such
indebtedness to the Guaranteed Creditors, or order, on demand,
together with any and all expenses which may be incurred by the
Guaranteed Creditors in collecting any of the Intermediate Holdco
Guaranteed Obligations. This Intermediate Holdco Guaranty is a
guaranty of payment and not of collection. This Intermediate Holdco
Guaranty is a continuing one and all liabilities to which it applies
or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. If claim is ever made upon any
Guaranteed Creditor for repayment or recovery of any amount or amounts
received in payment or on account of any of the Intermediate Holdco
Guaranteed Obligations and any of the aforesaid payees repays all or
part of said amount by reason of (i) any judgment, decree or order of
any court or administrative body having jurisdiction over such payee
or any of its property or (ii) any settlement or compromise of any
such claim effected by such payee with any such claimant (including
the Borrowers and any other Intermediate Holdco Guaranteed Party),
then and in such event Intermediate Holdco agrees that any such
judgment, decree, order, settlement or compromise shall be binding
upon Intermediate Holdco, notwithstanding any revocation of this
Intermediate Holdco Guaranty or any other instrument evidencing any
liability of either Borrower or any other Intermediate Holdco
Guaranteed Party, and Intermediate Holdco shall be and remain liable
to the aforesaid payees hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally
been received by any such payee.
16.02 Bankruptcy. Additionally, Intermediate Holdco
unconditionally and irrevocably guarantees the payment of any and all
of the Intermediate Holdco Guaranteed Obligations to the Guaranteed
Creditors whether or not due or payable by either Borrower or any
other Intermediate Holdco Guaranteed Party upon the occurrence of any
of the events specified in Section 10.05, and unconditionally promises
to pay such indebtedness to the Guaranteed Creditors, or order, on
demand.
16.03 Nature of Liability. The liability of Intermediate Holdco
hereunder is exclusive and independent of any security for or other
guaranty of the Intermediate Holdco Guaranteed Obligations whether
executed by Intermediate Holdco, any other guarantor or by any other
party, and the liability of Intermediate Holdco hereunder is not
affected or impaired by (a) any direction as to application of payment
by either Borrower, any other Intermediate Holdco Guaranteed Party or
any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any
-24-
other party as to the Intermediate Holdco Guaranteed Obligations, or
(c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease
or change in personnel by either Borrower or any other Intermediate
Holdco Guaranteed Party, or (e) any payment made to the Guaranteed
Creditors on the Intermediate Holdco Guaranteed Obligations which any
such Guaranteed Creditor repays to either Borrower or any other
Intermediate Holdco Guaranteed Party pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and Intermediate Holdco waives any right to the
deferral or modification of its obligations hereunder by reason of any
such proceeding, or (f) any action or inaction of the type described
in Section 16.05, or (g) the lack of validity or enforceability of any
Credit Document or any other instrument relating thereto.
16.04 Independent Obligation. No invalidity, irregularity or
unenforceability of all or any part of the Intermediate Holdco
Guaranteed Obligations or of any security therefor shall affect,
impair or be a defense to this Intermediate Holdco Guaranty, and this
Intermediate Holdco Guaranty shall be primary, absolute and
unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a legal or
equitable discharge of a surety or guarantor except payment in full in
cash of the Intermediate Holdco Guaranteed Obligations. The
obligations of Intermediate Holdco hereunder are independent of the
obligations of either Borrower, any other Intermediate Holdco
Guaranteed Party, any other guarantor or any other party and a
separate action or actions may be brought and prosecuted against
Intermediate Holdco whether or not action is brought against either
Borrower, any other Intermediate Holdco Guaranteed Party, any other
guarantor or any other party and whether or not either Borrower, any
other Intermediate Holdco Guaranteed Party, any other guarantor or any
other party be joined in any such action or actions. Intermediate
Holdco waives, to the full extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by a Borrower or any other
Intermediate Holdco Guaranteed Party or other circumstance that
operates to toll any statute of limitations as to such Borrower or
such other Intermediate Holdco Guaranteed Party shall operate to toll
the statute of limitations as to Intermediate Holdco.
16.05 Authorization. Intermediate Holdco authorizes the
Guaranteed Creditors without notice or demand (except as shall be
required by applicable statute and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate
or alter, any of the Intermediate Holdco Guaranteed Obligations
(including any increase or decrease in the rate of interest thereon),
any security therefor, or any liability incurred directly or
indirectly in respect thereof, and this Intermediate Holdco Guaranty
made shall apply to the Intermediate Holdco Guaranteed Obligations as
so changed, extended, renewed, increased or altered;
(b) take and hold security for the payment of the Intermediate
Holdco Guaranteed Obligations and sell, exchange, release, impair,
surrender, realize upon or
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otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Intermediate Holdco Guaranteed Obligations or any
liabilities (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against either
Borrower, any other Intermediate Holdco Guaranteed Party or others or
otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors,
either Borrower, any other Intermediate Holdco Guaranteed Party or
other obligors;
(e) settle or compromise any of the Intermediate Holdco
Guaranteed Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and may subordinate the payment of all or
any part thereof to the payment of any liability (whether due or not)
of either Borrower or any other Intermediate Holdco Guaranteed Party
to their respective creditors other than the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of either Borrower or any other
Intermediate Holdco Guaranteed Party to the Guaranteed Creditors
regardless of what liability or liabilities of such Borrower or such
other Intermediate Holdco Guaranteed Party remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement, any other Credit Document, any Interest
Rate Protection Agreement or Other Hedging Agreement or any of the
instruments or agreements referred to herein or therein, or otherwise
amend, modify or supplement this Agreement, any other Credit Document,
any Interest Rate Protection Agreement or Other Hedging Agreement or
any of such other instruments or agreements; and/or
(h) take any other action that would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge
of Intermediate Holdco from its liabilities under this Intermediate
Holdco Guaranty.
16.06 Reliance. It is not necessary for the Guaranteed Creditors
to inquire into the capacity or powers of either Borrower or any other
Intermediate Holdco Guaranteed Party or the officers, directors,
partners or agents acting or purporting to act on their behalf, and
any Intermediate Holdco Guaranteed Obligations made or created in
reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
16.07 Subordination. Any of the indebtedness of either Borrower
or any other Intermediate Holdco Guaranteed Party now or hereafter
owing to Intermediate Holdco is hereby subordinated to the
Intermediate Holdco Guaranteed Obligations of such Borrower or such
other Intermediate Holdco Guaranteed Party owing to the Guaranteed
Creditors; and if the Administrative Agent so requests at a time when
an Event of Default exists, all such indebtedness of such Borrower or
such other Intermediate Holdco Guaranteed Party to Intermediate Holdco
shall be collected, enforced and received by
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Intermediate Holdco for the benefit of the Guaranteed Creditors and be
paid over to the Administrative Agent on behalf of the Guaranteed
Creditors on account of the Intermediate Holdco Guaranteed Obligations
of such Borrower or such Intermediate Holdco Guaranteed Party to the
Guaranteed Creditors, but without affecting or impairing in any manner
the liability of Intermediate Holdco under the other provisions of
this Intermediate Holdco Guaranty. Prior to the transfer by
Intermediate Holdco of any note or negotiable instrument evidencing
any of the indebtedness of either Borrower or any other Intermediate
Holdco Guaranteed Party to Intermediate Holdco, Intermediate Holdco
shall xxxx such note or negotiable instrument with a legend that the
same is subject to this subordination. Without limiting the generality
of the foregoing, Intermediate Holdco hereby agrees with the
Guaranteed Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of
this Intermediate Holdco Guaranty (whether contractual, under Section
509 of the Bankruptcy Code or otherwise) until all Intermediate Holdco
Guaranteed Obligations have been irrevocably paid in full in cash.
16.08 Waiver. (a) Intermediate Holdco waives any right (except as
shall be required by applicable statute and cannot be waived) to
require any Guaranteed Creditor to (i) proceed against either
Borrower, any other Intermediate Holdco Guaranteed Party, any other
guarantor or any other party, (ii) proceed against or exhaust any
security held from either Borrower, any other Intermediate Holdco
Guaranteed Party, any other guarantor or any other party or (iii)
pursue any other remedy in any Guaranteed Creditor's power whatsoever.
Intermediate Holdco waives any defense based on or arising out of any
defense of either Borrower, any other Intermediate Holdco Guaranteed
Party, any other guarantor or any other party, other than payment in
full in cash of the Intermediate Holdco Guaranteed Obligations, based
on or arising out of the disability of either Borrower, any other
Intermediate Holdco Guaranteed Party, any other guarantor or any other
party, or the unenforceability of the Intermediate Holdco Guaranteed
Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of either Borrower or any other
Intermediate Holdco Guaranteed Party other than payment in full in
cash of the Intermediate Holdco Guaranteed Obligations. The Guaranteed
Creditors may, at their election, foreclose on any security held by
the Administrative Agent, the Collateral Agent or any other Guaranteed
Creditor by one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable (to the
extent such sale is permitted by applicable law), or exercise any
other right or remedy the Guaranteed Creditors may have against either
Borrower, any other Intermediate Holdco Guaranteed Party or any other
party, or any security, without affecting or impairing in any way the
liability of Intermediate Holdco hereunder except to the extent the
Intermediate Holdco Guaranteed Obligations have been paid in full in
cash. Intermediate Holdco waives any defense arising out of any such
election by the Guaranteed Creditors, even though such election
operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of Intermediate Holdco against
either Borrower, any other Intermediate Holdco Guaranteed Party or any
other party or any security.
(b) Intermediate Holdco waives all presentments, demands for
performance, protests and notices, including, without limitation,
notices of
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nonperformance, notices of protest, notices of dishonor, notices
of acceptance of this Intermediate Holdco Guaranty, and notices
of the existence, creation or incurring of new or additional
Intermediate Holdco Guaranteed Obligations. Intermediate Holdco
assumes all responsibility for being and keeping itself informed
of each Borrower's and each other Intermediate Holdco Guaranteed
Party's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the
Intermediate Holdco Guaranteed Obligations and the nature, scope
and extent of the risks which Intermediate Holdco assumes and
incurs hereunder, and agrees that the Guaranteed Creditors shall
have no duty to advise Intermediate Holdco of information known
to them regarding such circumstances or risks.
(c) Until such time as the Intermediate Holdco Guaranteed
Obligations have been paid in full in cash, Intermediate Holdco
hereby waives all rights of subrogation which it may at any time
otherwise have as a result of this Intermediate Holdco Guaranty
(whether contractual, under Section 509 of the Bankruptcy Code,
or otherwise) to the claims of the Guaranteed Creditors against
either Borrower, any other Intermediate Holdco Guaranteed Party
or any other guarantor of the Intermediate Holdco Guaranteed
Obligations and all contractual, statutory or common law rights
of reimbursement, contribution or indemnity from either Borrower,
any other Intermediate Holdco Guaranteed Party or any other
guarantor which it may at any time otherwise have as a result of
this Intermediate Holdco Guaranty.
(d) Intermediate Holdco hereby acknowledges and affirms that
it understands that to the extent the Intermediate Holdco
Guaranteed Obligations are secured by Real Property located in
California, Intermediate Holdco shall be liable for the full
amount of the liability hereunder notwithstanding the foreclosure
on such Real Property by trustee sale or any other reason
impairing Intermediate Holdco' or any Guaranteed Creditor's right
to proceed against either Borrower, any other Intermediate Holdco
Guaranteed Party or any other guarantor of the Intermediate
Holdco Guaranteed Obligations. In accordance with Section 2856 of
the California Code of Civil Procedure, Intermediate Holdco
hereby waives:
(i) all rights of subrogation, reimbursement, indemnification,
and contribution and any other rights and defenses that are or may
become available to Intermediate Holdco by reason of Sections 2787 to
2855, inclusive, 2899 and 3433 of the California Code of Civil
Procedure;
(ii) all rights and defenses that Intermediate Holdco may have
because the Intermediate Holdco Guaranteed Obligations are secured by
Real Property located in California, meaning, among other things,
that: (A) the Guaranteed Creditors may collect from Intermediate
Holdco without first foreclosing on any real or personal property
collateral pledged by either Borrower or any other Credit Party, and
(B) if the Guaranteed Creditors foreclose on any Real Property
collateral pledged by either Borrower or any other Credit Party, (1)
the amount of the Intermediate Holdco Guaranteed Obligations may be
reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale
price, and (2) the Guaranteed Creditors may collect from Intermediate
Holdco even if the Guaranteed Creditors, by foreclosing
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on the Real Property collateral, have destroyed any right Intermediate
Holdco may have to collect from either Borrower or any other
Intermediate Holdco Guaranteed Party, it being understood that this is
an unconditional and irrevocable waiver of any rights and defenses
Intermediate Holdco may have because the Intermediate Holdco
Guaranteed Obligations are secured by Real Property (including,
without limitation, any rights or defenses based upon Section 580a,
580d or 726 of the California Code of Civil Procedure); and
(iii) all rights and defenses arising out of an election of
remedies by the Guaranteed Creditors, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security
for the Intermediate Holdco Guaranteed Obligations, has destroyed
Intermediate Holdco' rights of subrogation and reimbursement against
either Borrower or any other Intermediate Holdco Guaranteed Party by
the operation of Section 580d of the California Code of Civil
Procedure or otherwise.
(e) Intermediate Holdco warrants and agrees that each of the
waivers set forth above is made with full knowledge of its
significance and consequences and that if any of such waivers are
determined to be contrary to any applicable law of public policy,
such waivers shall be effective only to the maximum extent
permitted by law.
16.09 Payments. All payments made by Intermediate Holdco pursuant
to this Section 16 shall be made in the respective Applicable Currency
in which the Intermediate Holdco Guaranteed Obligations are then due
and payable (giving effect, in the circumstances contemplated by
Section 1.14, to any conversion occurring pursuant thereto). All
payments made by Intermediate Holdco pursuant to this Section 16 will
be made without setoff, counterclaim or other defense, and shall be
subject to the provisions of Sections 4.03, 4.04 and 13.23.".
57. By its execution and delivery of this Amendment, Intermediate Holdco
(i) agrees to be become a party to the Credit Agreement as a "Guarantor",
"Credit Agreement Party" and "U.S. Credit Party" and to be bound by the terms
thereof and (ii) makes each of the representations and warranties contained in
Section 7 of the Credit Agreement as of the date hereof, after giving effect to
this Amendment.
58. Notwithstanding anything to the contrary contained in the Third
Amendment or in any other Credit Document, the Lenders hereby agree that the
Foreign Subsidiary Guarantors shall not be required to deliver to the
Administrative Agent copies of the resolutions described in clause (iii) of Part
5 of Section III of the Third Amendment; it being understood and agreed that (i)
the agreement contained in this Part 58 of Section I of this Amendment is
provided for the administrative convenience of the Foreign Subsidiary Guarantors
and shall not be (and shall not be construed to be) a waiver of any condition,
representation or other provision of the Third Amendment or any other Credit
Document requiring the due authorization of the Third Amendment and the related
transactions contemplated thereby by the Foreign Subsidiary Guarantors and (ii)
the Third Amendment is deemed to be a Credit Document for all purposes of the
Credit Agreement and the other Credit Documents.
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II. Miscellaneous Provisions.
1. In order to induce the Lenders to enter into this Amendment, each Credit
Agreement Party hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Fourth Amendment
Effective Date, both immediately before and immediately after giving effect
thereto; and
(b) all of the representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all
material respects on the Fourth Amendment Effective Date both immediately
before and immediately after giving effect thereto, with the same effect as
though such representations and warranties had been made on and as of the
Fourth Amendment Effective Date (it being understood that any
representation or warranty made as of a specific date shall be true and
correct in all material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
shall be lodged with Holdings and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
5. This Amendment shall become effective on the date (the "Fourth Amendment
Effective Date") when each of the following conditions shall have been
satisfied:
(i) each Credit Agreement Party and Lenders constituting the Required
Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of
facsimile transmission) the same to White & Case LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: May Yip (facsimile number
212-354-8113);
(ii) there shall have been delivered to the Administrative Agent
copies of resolutions of the Board of Directors of each Credit Agreement
Party approving and authorizing the execution, delivery and performance of
this Amendment and the Credit Documents as amended by this Amendment,
certified by the corporate secretary or an assistant secretary of such
Credit Agreement Party as being in full force and effect without
modification or amendment; and
(iii) the Holdco Contribution Requirements (as defined in Section 1 of
this Amendment) shall have been satisfied.
-30-
6. From and after the Fourth Amendment Effective Date all references in the
Credit Agreement and each of the other Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as modified hereby on
the Fourth Amendment Effective Date.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
DHM HOLDING COMPANY, INC.
By:
--------------------------------
Name:
Title:
XXXX HOLDING COMPANY, LLC.
By:
--------------------------------
Name:
Title:
XXXX FOOD COMPANY, INC.
By:
--------------------------------
Name:
Title:
SOLVEST, LTD.
By:
--------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH,
Individually, and as
Administrative Agent
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC,
Individually, as Co-Syndication
Agent and as Joint Lead Arranger
By:
--------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
Individually, as Co-Syndication
Agent and as Joint Lead Arranger
By:
--------------------------------
Name:
Title:
FLEET NATIONAL BANK,
Individually, and as
Co-Documentation Agent
By:
--------------------------------
Name:
Title:
SOCIETE GENERALE,
Individually, and as
Co-Documentation Agent
By:
--------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arranger
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO CREDIT AGREEMENT, DATED AS OF
FEBRUARY 27, 2004, AMONG DHM HOLDING
COMPANY, INC., XXXX FOOD COMPANY, INC.,
SOLVEST LTD., THE LENDERS FROM TIME TO
TIME PARTY TO THE CREDIT AGREEMENT,
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, BANC OF AMERICA
SECURITIES LLC AND THE BANK OF NOVA
SCOTIA, AS CO-SYNDICATION AGENTS, FLEET
NATIONAL BANK AND SOCIETE GENERALE, AS
CO-DOCUMENTATION AGENTS AND DEUTSCHE
BANK SECURITIES INC. AND BANC OF AMERICA
SECURITIES LLC AS CO-LEAD ARRANGERS AND
JOINT BOOK RUNNING MANAGERS
NAME OF INSTITUTION:
By:
------------------------------------
Name:
Title:
