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Merisant Worldwide, Inc.
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8-K
Jun 27, 2:05 PM ET
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Merisant Worldwide, Inc. 8-K
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Contents
54
All capitalized terms not defined herein shall have the meanings ascribed to such terms in the Credit Agreement, as amended by this Amendment. The principles of interpretation set forth in Section 1.4 of the Credit Agreement shall apply to the provisions of this Amendment. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference contained in the Credit Agreement, each reference to “this Agreement”, “the Credit Agreement” and each other similar reference contained in the Credit Agreement, and other Loan Documents and shall on and after the Amendment Effective Date refer to the Credit Agreement as amended by this Amendment. This Amendment constitutes a “Loan Document” as defined in the Credit Agreement.
2.1. Amendments to Definitions. Section 1.1 of the Credit Agreement is hereby amended by adding certain definitions, and by revising certain definitions, in each case as set forth on Schedule 2.1 hereto.
2.2. Other Amendments. The Credit Agreement is hereby amended by amending certain Sections and by adding certain provisions, in each case as set forth on Schedule 2.2 attached hereto.
3.1. Intercreditor Agreement. (a) Each of the undersigned Lenders hereby (1) consents to the terms of the Intercreditor Agreement, a copy of which is attached hereto, and agrees to be bound thereby, (2) authorizes and directs the Administrative Agent to enter into the Intercreditor Agreement on its behalf, and (3) authorizes the Administrative Agent to take all actions and execute all documents required or deemed advisable by the Administrative Agent in accordance with the terms of the Intercreditor Agreement. Each of the undersigned Lenders confirms the obligations of the Lenders pursuant to Section 8.5 of the Credit Agreement to indemnify the Administrative Agent from and against each Lender’s aggregate Pro Rata Portion of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements (including reasonable fees and disbursements of legal counsel) of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against, the Administrative Agent or any of its Affiliates, directors, officers, employees, agents and advisors in any way relating to or arising out of the Administrative Agent’s actions pursuant to this Section 3.1.
(b) The terms of the Intercreditor Agreement shall be binding on all Lenders, their successors and assigns.
4.1. Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which each of the following conditions is satisfied:
(a) there shall have been delivered to the Administrative Agent (i) counterparts of this Amendment executed by the requisite number of Lenders pursuant to Section 9.1 of the Credit Agreement, the Borrower, Holdings and the Subsidiary Guarantors named on the signature pages hereof, and (ii) counterparts of the Intercreditor Agreement, executed by the Second Lien Agent therein named and acknowledged by the Borrower, Holdings and the Subsidiary Guarantors;
(b) the Administrative Agent shall have received all fees and accrued and unpaid costs and expenses (including reasonable legal fees and expenses) required to be paid on or prior to the Amendment Effective Date pursuant to the Credit Agreement or this Amendment;
(c) contemporaneously with the effectiveness of this Amendment, the closing and funding of term loans in the principal amount of $85,000,000 under the Second Lien Credit Agreement shall occur and the portion of the Net Cash Proceeds of such loans required to prepay the Obligations in accordance with Section 2.9(a)(4) shall have been applied in accordance with Section 2.9(c) of the Credit Agreement;
(d) the Administrative Agent shall have received a certificate of a Responsible Officer, dated as of the Amendment Effective Date, (i) certifying that the Second Lien Credit Agreement and the Second Lien Collateral Documents have been executed and delivered by the parties thereto in the form delivered to the Administrative Agent, and such agreements satisfy the requirements of Section 6.20(a) of the Credit Agreement as amended hereby, and (ii) demonstrating that after giving effect to the application of the Net Cash Proceeds of the loans under the Second Lien Credit Agreement, the One-Time Consolidated First Lien Leverage Ratio is less than or equal to 3.0x;
(e) The Borrower shall have delivered a copy of the opinion delivered pursuant to Section 3.1(a)(v)(A) of the Second Lien Credit Agreement, which opinion shall either be addressed to the First
Lien Agent and the First Lien Lenders (and their permitted successors and assigns) or accompanied by a reliance letter executed by the law firm rendering such opinion and addressed to the First Lien Agent and the First Lien Lenders, permitting them (and their permitted successors and assigns) to rely on such opinion to the same extent as if it were addressed to them; and
(f) Such other certificates, documents, agreements and information respecting any Loan Party as the Requisite Lenders may require.
To induce the Lenders and the Administrative Agent to enter into this Amendment, the Borrower and Holdings, jointly and severally, represent and warrant to the Administrative Agent, each Issuer and each Lender as set forth in Schedule 5.1 attached hereto. The representations and warranties in Schedule 5.1 shall survive the execution and delivery of this Amendment and the Amendment Effective Date.
6.1. No Other Amendments; Reservation of Rights; No Waiver; Ratification and Confirmation. Other than as otherwise expressly provided herein, this Amendment shall not be deemed to operate as an amendment or waiver of, or to prejudice, any right, power, privilege or remedy of any Secured Party under the Credit Agreement or any other Loan Document, nor shall the entering into of this Amendment preclude any Secured Party from refusing to enter into any further amendments with respect to the Credit Agreement or any other Loan Document. This Amendment shall not constitute a waiver of compliance (i) with any covenant or other provision in the Credit Agreement or any other Loan Document or (ii) of the occurrence or continuance of any present or future Default or Event of Default. Except as expressly set forth in this Amendment, the terms, provisions and conditions of the Credit Agreement and the other Loan Documents are hereby ratified and confirmed and shall remain unchanged and in full force and effect without interruption or impairment of any kind.
6.2. Governing Law. This Amendment will be governed by and construed in accordance with the laws of the State of New York.
6.3. Headings; Schedules; Counterparts; Severability. The article and section headings contained in this Amendment are inserted for convenience only and will not affect in any way the meaning or interpretation of this Amendment. All Schedules attached hereto are incorporate herein as if fully set forth herein. This Amendment may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. This Amendment may be delivered by exchange of copies of the signature page by facsimile transmission or other electronic transmission. The provisions of this Amendment will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Amendment, as applied to any party or to any circumstance, is judicially determined not to be enforceable in accordance with its terms, the parties agree that the court judicially making such determination may modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its modified form, such provision will then be enforceable and will be enforced.
6.4. Costs; Expenses. Regardless of whether the transactions contemplated by this Amendment are consummated, the Borrower and Holdings, jointly and severally, agree to pay to the Administrative Agent on demand all out-of-pocket costs and expenses of the Administrative Agent
incurred in connection with the preparation, execution and delivery of this Amendment, including the fees and expenses of legal counsel to the Administrative Agent.
6.5. Assignment; Binding Effect. No party may assign either this Amendment or any of its rights, interests or obligations hereunder except in the manner specified for an assignment in respect of the Credit Agreement in Section 9.2 of the Credit Agreement. All of the terms, agreements, covenants, representations, warranties and conditions of this Amendment are binding upon, and inure to the benefit of and are enforceable by, the parties and their respective successors and permitted assigns.
6.6. Waiver of Claims. Each of the Borrower and Holdings acknowledges and agrees that, as of the date hereof: (a) none of the Borrower, Holdings, or, to the knowledge of the Borrower, any of their Subsidiaries or Affiliates has any claim or cause of action against any of the Lenders or the Administrative Agent, the Arranger, the Syndication Agent or the Co-Documentation Agents (collectively, the “Agents”), or any of their directors, officers, employees, attorneys or agents; (b) none of the Borrower, Holdings or, to the knowledge of the Borrower, any of their Subsidiaries or Affiliates has offset rights, counterclaims or defenses of any kind against any of their obligations, indebtedness or liabilities to any of the Lenders or the Agents; and (c) each of the Lenders and the Agents has heretofore properly performed and satisfied in a timely manner all of its obligations to the Borrower, Holdings and, to the knowledge of the Borrower, each of their Subsidiaries and Affiliates. The Lenders and the Agents wish (and the Borrower and Holdings agree) to eliminate any possibility that any past conditions, acts, omissions, events, circumstances or matters would impair or otherwise adversely affect any of the rights, interests, contracts, collateral security or remedies of the Lenders or the Agents. Therefore, each of the Borrower and Holdings on its own behalf and on behalf of each of its respective successors and assigns, hereby waives, releases and discharges the Lenders and the Agents and all of their directors, officers, employees, attorneys and agents, from any and all claims, demands, actions or causes of action existing as of the date of this Amendment and arising out of or in any way relating to the Loan Documents and any documents, instruments, agreements (including this Amendment), dealings or other matters connected with the Loan Documents, including, without limitation, all known and unknown matters, claims, transactions or things occurring on or prior to the date of this Amendment related to the Loan Documents. The waivers, releases, and discharges in this paragraph shall be effective regardless of any other event that may occur or not occur prior to or on the date hereof.
6.7. Affirmation. Each of the Borrower, Holdings, and each of the undersigned Subsidiary Guarantors ratifies and confirms that (i) each Collateral Document, Guaranty and other Loan Document previously executed by it continues in full force and effect and is not released, diminished, impaired, reduced, or otherwise adversely affected, and continues in full force in effect, and all of the obligations of Borrower, Holdings, and the Subsidiary Guarantors thereunder are hereby ratified and confirmed, (ii) each Collateral Document previously executed by it continues to secure the full payment and performance of the Obligations, and (iii) all Liens granted, conveyed, or assigned to Administrative Agent thereunder remain in full force and effect and are not released or reduced and continue to secure full payment and performance of the Obligations. Each of the undersigned Subsidiary Guarantors consents to the terms of this Amendment, and without limiting the generality of the foregoing, specifically consents to and agrees to be bound by new Section 5.14 of the Credit Agreement.
6.8. No Prior Notice of Prepayment Required, etc. On the Amendment Effective Date the Borrower will make mandatory and optional prepayments of Loans. With respect to such optional prepayments, the Lenders agree that the following requirements set forth in Section 2.8 of the Credit Agreement shall not apply: requirement for advance notice of optional prepayments, and requirement that prepayments be in integral multiples of $1,000,000 or €1,000,000
6.9. Entire Agreement. The Credit Agreement as amended by this Amendment, together with the Exhibits and Schedules thereto that are delivered pursuant thereto, constitutes the entire agreement and understanding of the parties in respect of the subject matter of the Credit Agreement as amended by this Amendment and supersedes all prior understandings, agreements or representations by or among the parties, written or oral, to the extent they relate in any way to the subject matter of the Credit Agreement as amended by this Amendment.
(a) Holdings has no direct Subsidiary other than the Borrower. The authorized capital stock of the Borrower consists of 100 shares of common stock, $0.01 par value per share, of which 100 shares are issued and outstanding. All of the outstanding capital stock of the Borrower has been validly issued, is fully paid and non-assessable and is owned beneficially and of record by Holdings, free and clear of all Liens other than the Liens in favor of the Secured Parties (as defined in the Second Lien Credit Agreement) created by the Second Lien Credit Documents and the Liens in favor of the Secured Parties created by the Security Agreement. There are no agreements or understandings to which the Borrower is a party with respect to the voting, sale or transfer of any shares of Capital Stock of the Borrower or any agreement restricting the transfer or hypothecation of any such shares.
(b) Except as disclosed to the Administrative Agent by the Borrower in writing from time to time after the Closing Date, (i) Schedule 4.15 sets forth the name and jurisdiction of incorporation of each Subsidiary of the Borrower and, as to each such Subsidiary, the number of shares of each class of Capital Stock authorized (if applicable), the number outstanding and the number and percentage of each class of Capital Stock owned by any Loan Party or any Subsidiary thereof and (ii) there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors’ qualifying shares) of any nature relating to any Capital Stock of the Borrower or any Subsidiary of the Borrower, except as created by the Loan Documents and the Second Lien Credit Documents. All of the outstanding Capital Stock of each Subsidiary of the Borrower has been validly issued, is fully paid and non-assessable and is owned by the Borrower or a Subsidiary of the Borrower, free and clear of all Liens other than the Liens in favor of the Secured Parties (as defined in the Second Lien Credit Agreement) created by the Second Lien Credit Documents and the Liens in favor of the Secured Parties created pursuant to the Security Agreement. Neither the Borrower nor any Subsidiary of the Borrower is a party to, or has knowledge of, any material agreement materially restricting the transfer or hypothecation of any Stock of any such Subsidiary, other than the Loan Documents and the Second Lien Credit Documents. Neither Holdings, the Borrower nor any of its Subsidiaries owns or holds, directly or indirectly, any Stock of any Person other than
such Subsidiaries and Investments permitted by Section 6.8. Each Subsidiary of the Borrower is a Wholly Owned Subsidiary.”
(a) Section 6.2 is hereby amended by revising the first parenthetical in clause (iv) to read as follows: “(other than Hedging Contracts, the Senior Subordinated Notes and the Senior Subordinated Discount Notes)”.
(b) Section 6.2 is hereby further amended by amending each of clause (v) and clause (xiii) by adding the following parenthetical after the word “Indebtedness”: (other than Indebtedness of (x) any Subsidiary of Holdings that directly owns Capital Stock in an Excluded Foreign Subsidiary, and (y) Merisant Spain, S.L.)”, and by adding the following proviso at the end of clause (xiii): “provided, further, that, in no event shall the aggregate amount of all such Indebtedness of Merisant Netherlands pursuant to this clause (xiii) exceed $2,000,000 outstanding at any time;”
(c) Section 6.2 is hereby further amended by amending clause (ix) by adding the following after the word “Subsidiaries”: (other than (x) any Subsidiary that directly owns Capital Stock in an Excluded Foreign Subsidiary, and (y) Merisant Spain, S.L.)”.
(d) Section 6.2 is hereby further amended by amending clause (xii) in its entirety to read as follows: “(xii) Indebtedness of Holdings consisting of Senior Subordinated Discount Notes issued by Holdings pursuant to the Senior Subordinated Discount Notes Indenture;”
(e) Section 6.2(xiv) is hereby amended, in its entirety, to read as follows: “(xiv) Second Lien Indebtedness and any refinancing thereof that is permitted by the Intercreditor Agreement;”
(f) Section 6.2(xv) is hereby amended, in its entirety, to read as follows:
“(xv) Guarantee Obligations (I) by any Loan Party (other than any Subsidiary that directly owns Capital Stock in an Excluded Foreign Subsidiary) of any Indebtedness of any Loan Party incurred pursuant to Section 6.2(ix) or Section 6.2(xvii), or (II) by any Loan Party of Indebtedness of the Borrower incurred pursuant to Section 6.2(xiv);”
(g) Section 6.2 is hereby further amended by adding the following clauses:
(a) Section 6.3(xiii) of the Credit Agreement is hereby amended in its entirety to read as follows:
(b) Section 6.3 of the Credit Agreement is hereby further amended by adding the following clause:
(a) Section 6.4(c) of the Credit Agreement is hereby amended by adding the following clause after the phrase “except for changes and amendments” and before the phrase “which do not materially affect”:
(b) Section 6.4(c) of the Credit Agreement is further amended by revising clause (vi) therein to read as follows: “(vi) [Intentionally Omitted].”
(a) Section 6.6 of the Credit Agreement is hereby amended by amending clause (b)(y) thereof in its entirety as follows:
(b) Section 6.6(ii) of the Credit Agreement is further amended to delete the phrase “may pay dividends to Holdings to permit Holdings to accrue” and to substitute the following therefor: “and Holdings may accrue”.
(c) Clause (v) of Section 6.6 of the Credit Agreement is hereby amended in its entirety to read as follows:
(d) The last appearing clause (vii) of Section 6.6 of the Credit Agreement is amended in its entirety to read as follows:
(e) The proviso at the end of Section 6.6 of the Credit Agreement is amended to delete the phrase “clause (ii), (v), (vi) or (vii)” and to substitute the following therefor: “clause (ii),(v), (vi), (vii), (viii) or (ix)”.
(a) Section 6.17 of the Credit Agreement is hereby amended by adding “(i)” at the beginning of such Section, and by adding the words “or the Senior Subordinated Discount Notes (or the Senior Subordinated Discount Notes Indenture or any other agreement in connection therewith) or any documents or agreements governing Permitted Additional Secured Indebtedness or Permitted PIK Notes” after the words “in connection therewith)”.
(b) Section 6.17 of the Credit Agreement is hereby further amended by adding clause (ii) that reads as follows:
(a) Second Lien Credit Documents. Subject to the terms of the Intercreditor Agreement, each of the Borrower and Holdings agree, on behalf of itself and on behalf of each of the other Loan Parties, that neither the Second Lien Credit Agreement nor any other Second Lien Credit Document will (i) provide for loans in an aggregate principal amount greater than $85,000,000 or the then-existing principal amount as permitted by the Intercreditor Agreement, (ii) contravene the provisions of the Intercreditor Agreement, (iii) provide for covenants, representations and warranties, events of default, rights or remedies which are in the aggregate on terms less favorable to the Lenders, or (iv) provide for collateral securing Indebtedness thereunder which is more extensive than the Collateral, or provide for guaranties from Subsidiaries or other Persons that are not required to deliver Guaranties under this Agreement,
unless in each case such collateral or guaranty is also provided to the Administrative Agent for the benefit of the Lenders.
(b) The terms of the Intercreditor Agreement shall be binding on all Lenders, their successors and assigns.”
a) The representations and warranties of each of the Borrower and Holdings in Article IV of the Credit Agreement and in clauses (b) through (e) of this Schedule 5.1 are on the date of execution and delivery of this Amendment, and will be on the Amendment Effective Date, true, correct and complete in all material respects with the same effect as though made on and as of such respective date (or, to the extent such representations and warranties expressly relate to an earlier date, on and as of such earlier date).
b) Each of the Borrower and Holdings is in compliance in all material respects with all the terms and provisions set forth in the Credit Agreement and in each other Loan Document on its part to be observed or performed; and no Default or Event of Default has occurred and is continuing.
c) The execution, delivery and performance by the Borrower, Holdings and each Subsidiary Guarantor of this Amendment: (i) are within such Person’s corporate or limited liability company powers; (ii) have been duly authorized by all necessary corporate or other entity action, including the consent of the holders of its equity interests where required; (iii) do not and will not (A) contravene the certificate of incorporation or formation, as applicable or by-laws or limited liability company agreement of such Person, (B) violate any other applicable Requirement of Law applicable to such Person, (C) conflict with or result in the breach of, or constitute a default under, or result in or permit the termination or acceleration of, any Contractual Obligation of such Person, or (D) result in the creation or imposition of any Lien upon any of the property of such Person pursuant to any Requirement of Law or any such Contractual Obligation other than those Liens permitted by the Loan Documents; and (iv) do not and will not require the consent of, authorization by, approval of, notice to, or filing or registration with, any Governmental Authority or any other Person, other than those which prior to the Amendment Effective Date will have been obtained or made and, to the extent requested by Administrative Agent, copies of which prior to the Amendment Effective Date will have been delivered to the Administrative Agent, and each of which on the Amendment Effective Date will be in full force and effect.
d) No investigation, litigation or proceeding exists or, to the best knowledge of Holdings or the Borrower, is threatened, of the type described in Section 4.6 of the Credit Agreement or that seeks to affect any transaction contemplated by this Amendment or permitted herein.
e) This Amendment has been duly executed and delivered by the Borrower, Holdings and each Subsidiary Guarantor. Each of this Amendment and the Credit Agreement constitutes the legal, valid and binding obligation of the Borrower, Holdings, and each Subsidiary Guarantor, enforceable against such Person in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
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