EXHIBIT 10.1
SECOND AMENDMENT
----------------
SECOND AMENDMENT, dated as of March 18, 2004 (this "Amendment"), to the
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 17, 2001, as amended by
the First Amendment dated as of October 28, 2002 (the "Credit Agreement"), among
FLAVORS HOLDINGS INC., a Delaware corporation, PNEUMO ABEX CORPORATION, a
Delaware corporation (the "Borrower"), the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders"), BNP
PARIBAS, as documentation agent, and JPMORGAN CHASE BANK, as paying agent (in
such capacity, the "Paying Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower has requested that the Lenders agree to amend certain
provisions of the Credit Agreement as described herein; and
WHEREAS, the parties hereto are willing to amend such provisions on and
subject to the terms and conditions herein;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Definitions. Unless otherwise defined herein, terms defined in the Credit
Agreement shall have those meanings when used herein.
Amendment to Section 1.1 of the Credit Agreement.
(a) The first sentence of the definition of "Subsidiary" contained in
Section 1.1 of the Credit Agreement is hereby amended by adding the following
proviso to the end thereof:
"; provided, that Excluded Subsidiaries shall be deemed not to constitute
"Subsidiaries" for the purposes of this Agreement (other than the first use of
such term in the definition of "Excluded Subsidiaries")"
(b) Section 1.1 of the Credit Agreement is hereby further amended by
adding the following new defined terms in appropriate alphabetical order:
"Excluded Subsidiaries": from and after the consummation of the Xxx Xxxx
Transaction, each of Xxx Xxxx and any of its Subsidiaries, provided, that (i) at
no time shall any creditor of any such Person have any claim (whether pursuant
to a Guarantee Obligation, by operation of law or otherwise) against Holdings,
the Borrower or any of its Subsidiaries in respect of any Indebtedness or other
obligation of any such Person; (ii) neither Holdings, the Borrower nor any of
its Subsidiaries shall become a general partner of any such Person; (iii) no
default with respect to any Indebtedness of any such Person (including any right
which the holders thereof may have to take enforcement action against any such
Person) shall permit (upon notice, lapse of time or both) any holder of any
Indebtedness of Holdings, the Borrower or any of its Subsidiaries to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity; (iv) no such
Person shall own any Capital Stock of,
or own or hold any Lien on any property of, Holdings, the Borrower or any of its
Subsidiaries; and (v) no investments, loans or advances may be made in or to any
such Person by Holdings, the Borrower or any of its Subsidiaries except pursuant
to Section 7.7(i). It is understood that Excluded Subsidiaries shall be
disregarded for the purposes of any calculation pursuant to this Agreement
relating to financial matters with respect to Holdings, the Borrower and its
Subsidiaries (including for purposes of the definition of Excess Cash Flow), but
that cash dividends actually paid by any Excluded Subsidiary to the Borrower or
any of its Subsidiaries shall be included in Consolidated Net Income.
"Mafco Shanghai": Mafco Shanghai Corporation, a Delaware corporation.
"Xxx Xxxx": Xxx Xxxx Enterprises Limited, a British Virgin Islands company.
"Xxx Xxxx Transaction": the collective reference to (i) the contribution by
the Borrower to Xxx Xxxx of 100% of the Capital Stock of Concord Pacific
Corporation (whose sole assets shall consist of (x) Capital Stock of Xianyang
Concord Natural Products Co., Ltd. and (y) miscellaneous assets with an
aggregate book value not to exceed $375,000); (ii) the contribution by the
Borrower, through Mafco Shanghai, to Xxx Xxxx of (x) $2,400,000 of cash and (y)
an additional amount of cash not to exceed $1,100,000, determined based on asset
values, all of which is expected to be distributed immediately upon receipt to
the other shareholder in Xxx Xxxx; (iii) the receipt by Mafco Shanghai of shares
of common stock of Xxx Xxxx such that, immediately after giving effect thereto,
Mafco Shanghai will own 50% of the outstanding common stock of Xxx Xxxx; (iv)
the contribution by the Borrower from time to time of an aggregate amount of up
to $1,250,000 to Xxx Xxxx to finance its working capital needs (including
capital expenditures) and an additional aggregate amount of up to $2,000,000 for
any purpose, and (v) the payment by Mafco Shanghai to Xxx Xxxx of up to
$1,200,000 in respect of an "earn-out" that will be based on a portion of the
operating income of Xxx Xxxx, all of which is expected to be distributed
immediately upon receipt to the other shareholder in Xxx Xxxx.
Amendment to Section 6 of the Credit Agreement. Section 6 of the Credit
Agreement is hereby amended by adding the following new Section 6.10 to the end
thereof:
"6.10 Organizational Separateness. (a) Maintain bank accounts with
commercial banking institutions that are separate from those of the Excluded
Subsidiaries.
(b) Maintain accurate and separate books, records and accounts in a manner
permitting its assets and liabilities to be easily separated from those of the
Excluded Subsidiaries.
(c) Ensure that its monies and other assets are not commingled with the
monies or other assets of any Excluded Subsidiary.
(d) Use commercially reasonable efforts in its capacity as a shareholder in
a non-Wholly Owned Subsidiary to cause each Excluded Subsidiary to not hold
itself out to the public or to any of its individual creditors as being a
unified Person with common assets and liabilities with Holdings, the Borrower or
any of its Subsidiaries or act in a manner that would otherwise cause its
creditors to believe that such Person was not a separate entity from such other
Persons.
(e) Without limiting the generality of the foregoing, not take any action,
or conduct its affairs in a manner, and use commercially reasonable efforts in
its capacity as a
shareholder in a non-Wholly Owned Subsidiary to cause each Excluded Subsidiary
to not take any action, or conduct its affairs in a manner, that could
reasonably be expected to result in the separate existence of any Excluded
Subsidiary being ignored, or the assets and liabilities of any Excluded
Subsidiary being substantively consolidated with those of Holdings, the Borrower
or any of its Subsidiaries in a bankruptcy, reorganization or other insolvency
proceeding."
Amendment to Sections 7.5, and 7.7 and 7.10 of the Credit Agreement.
(a) Section 7.5 of the Credit Agreement is hereby amended by adding to the
end thereof the following new clause: "(g) asset dispositions expressly
described in the definition of Xxx Xxxx Transaction".
(b) Section 7.7 of the Credit Agreement is hereby amended by adding to the
end thereof the following new clause: "(i) investments expressly described in
the definition of Xxx Xxxx Transaction".
(c) Section 7.10 of the Credit Agreement is hereby amended by adding to the
end thereof the following new clause: "(i) Indebtedness pursuant to the earn-out
provision described in the definition of Xxx Xxxx Transaction".
Amendment to Section 8 of the Credit Agreement.
(a) Section 8(c) of the Credit Agreement is hereby amended by adding the
reference ", 6.10" after the reference "6.7(c)" contained therein.
(b) Section 8 of the Credit Agreement is hereby amended by adding the
following clause (n) after clause (m):
(n) Mafco Shanghai shall (i) conduct, transact or otherwise engage in, or
commit to conduct, transact or otherwise engage in, any business or operations
other than those incidental to its ownership of the Capital Stock of other
Persons, (ii) incur, create, assume or suffer to exist any Indebtedness or other
liabilities or financial obligations, except (x) nonconsensual obligations
imposed by operation of law, (y) obligations pursuant to the Loan Documents to
which it is a party and (z) obligations with respect to its Capital Stock, (iii)
own, lease, manage or otherwise operate any properties or assets other than the
ownership of shares of Capital Stock of other Persons, (iv) cease to be a Wholly
Owned Subsidiary of the Borrower, or (v) cease to own, directly or indirectly,
all of the Borrower's direct or indirect interests in the Excluded Subsidiaries;
Guarantee and Collateral Matters. For the avoidance of doubt, the parties
hereto agree that (a) concurrently with the consummation of the transactions
described in clauses (i), (ii) and (iii) of the definition of "Xxx Xxxx
Transaction" (the "Initial Xxx Xxxx Transactions"), the Capital Stock of Concord
Pacific Corporation and Xianyang Concord Natural Products Co., Ltd. and all
other assets of Concord Pacific Corporation shall cease to constitute Collateral
and Concord Pacific Corporation shall cease to be a Guarantor, (b) no Excluded
Subsidiary shall be
required to become a party to the Guarantee and Collateral Agreement and (c)
100% of the Capital Stock of Mafco Shanghai (but none of the Capital Stock of
Xxx Xxxx) shall be pledged as Collateral. At the request and sole expense of the
Borrower, the Paying Agent shall deliver to the Borrower the relevant Collateral
referred to in clause (a) above and execute and deliver to the Borrower such
documents as it shall reasonably request to evidence the release of such
Collateral (including UCC-3 partial termination statements).
Representations and Warranties. The representations and warranties made by
the Borrower in Section 4 of the Credit Agreement, after giving effect to this
Amendment and the transactions contemplated hereby, shall be true and correct in
all material respects, except where such representations and warranties relate
to an earlier date in which case such representations and warranties shall be
true and correct in all material respects as of such earlier date. The Borrower
represents and warrants that, after giving effect to this Amendment, no Default
or Event of Default has occurred and is continuing.
Effectiveness. This Amendment shall be effective on and as of the date (the
"Effective Date") on which this Amendment shall have been executed and delivered
by the Borrower, Holdings and the Required Lenders; provided that this Amendment
shall cease to be effective if the Initial Xxx Xxxx Transactions are not
consummated on or prior to June 30, 2004.
Continuing Effect of Loan Documents. This Amendment shall not constitute a
waiver, amendment or modification of any other provision of the Loan Documents
not expressly referred to herein and shall not be construed as a waiver or
consent to any further or future action on the part of the Borrower. Except as
expressly amended or modified herein, the provisions of the Loan Documents are
and shall remain in full force and effect.
Counterparts; Binding Effect. (a) This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
(b) The execution and delivery of this Amendment by any Lender shall be
binding upon each of its successors and assigns and binding in respect of all of
its commitments and Loans, including any commitments or Loans acquired
subsequent to its execution and delivery hereof and prior to the effectiveness
hereof.
Payment of Expenses. The Borrower agrees to pay or reimburse the Paying
Agent for all of its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of this Amendment and
any other documents prepared in connection herewith, and the consummation and
administration of the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the Paying
Agent.
GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[Rest of page left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the day and year first above written.
FLAVORS HOLDINGS INC.
By:
-----------------------------------
Name:
Title:
PNEUMO ABEX CORPORATION
By:
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as Paying Agent and as a Lender
By:
-----------------------------------
Name:
Title:
BNP PARIBAS, as Documentation Agent and as a Lender
By:
-----------------------------------
Name:
Title:
Archimedes Funding III, Ltd.
By:
-----------------------------------
Name:
Title:
Archimedes Funding IV, Ltd.
By:
-----------------------------------
Name:
Title:
Balanced High Yield Fund II Ltd.
By:
-----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
-----------------------------------
Name:
Title:
ING Prime Rate Trust
By:
-----------------------------------
Name:
Title:
Long Lane Master Trust IV
By:
-----------------------------------
Name:
Title:
ML CLO XII Pilgrim America (Cayman)
By:
-----------------------------------
Name:
Title:
ML CLO XV Pilgrim America (Cayman), Ltd.
By:
-----------------------------------
Name:
Title:
ML CLO XX Pilgrim America (Cayman)
By:
-----------------------------------
Name:
Title:
Mountain Capital CLO I Ltd.
By:
-----------------------------------
Name:
Title:
Mountain Capital CLO II Ltd.
By:
-----------------------------------
Name:
Title:
ORIX Financial Services Inc.
By:
-----------------------------------
Name:
Title:
Pilgrim America High Income Investments Ltd.
By:
-----------------------------------
Name:
Title:
Pilgrim CLO 1999-1 Ltd.
By:
-----------------------------------
Name:
Title:
SEQUILS - Pilgrim I, Ltd.
By:
-----------------------------------
Name:
Title:
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By:
-----------------------------------
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By:
-----------------------------------
Name:
Title:
STONE TOWER CLO LTD.
By:
-----------------------------------
Name:
Title:
