FIRST REFINANCING AMENDMENT TO CREDIT AGREEMENT
Exhibit 4.9
FIRST REFINANCING AMENDMENT
TO
CREDIT AGREEMENT
FIRST REFINANCING AMENDMENT, dated as of September 13, 2023 (this “First Refinancing Amendment”), by and among XXXXX HOLDINGS LLC, a Delaware limited liability company (“Xxxxx Holdings”), XXXXX CAPITAL INC., a Delaware corporation (“Xxxxx Capital” and, together with “Xxxxx Holdings”, each individually a “Borrower” and collectively the “Borrowers”), XXXXX BEAUTY HOLDINGS, INC., a Delaware corporation (“Holding”), and XXXXX INVESTMENT HOLDINGS LLC, a Delaware limited liability company (“Intermediate Holdings”), BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”) and as arranger of the 2023 Refinancing Term Loan Facility (as defined below) (in such capacity, the “2023 Refinancing Arranger”), the Facility Lenders, and the other Guarantors party hereto.
RECITALS
WHEREAS, reference is made to that certain Credit Agreement, dated as of February 28, 2023 (as amended, restated, supplemented and/or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”, and as further amended by this First Refinancing Amendment, the “Amended Credit Agreement”), by and among, among others, Xxxxx Holdings, Xxxxx Capital, Holding, Intermediate Holdings, the Administrative Agent, each Lender from time to time party thereto;
WHEREAS, on the date hereof (but prior to giving effect to this First Refinancing Amendment), there are outstanding Term B Loans under the Credit Agreement in an aggregate principal amount of $399,000,000 (the “Refinanced Debt”);
WHEREAS, in connection with the repricing of the Refinanced Debt, the Borrowers intend to (a) incur Replacement Term Loans under Section 9.01 of the Amended Credit Agreement in an aggregate amount of up to $399,000,000 (the “2023 Term Loans”, which loans are extended under the term loan facility described herein, the “2023 Refinancing Term Loan Facility”), which shall be incurred on the First Refinancing Amendment Effective Date (as defined in Section 5 below) and (b) amend the Credit Agreement to account for the 2023 Refinancing Term Loan Facility (the “Amendments”);
WHEREAS, the Borrowers intend to apply the proceeds of the borrowings under the 2023 Refinancing Term Loan Facility under this First Refinancing Amendment on the First Refinancing Amendment Effective Date to refinance and prepay the Refinanced Debt in full;
WHEREAS, certain Lenders party hereto have advised the 2023 Refinancing Arranger that they wish to become 2023 Term Lenders (as defined below) and to extend credit to the Borrowers in the form of 2023 Term Loans in accordance with the terms set out herein;
WHEREAS, in connection with the 2023 Term Loans, each existing Term Lender (each, an “Existing Term Lender”) that elects a “Consent and Convert (Cashless Settlement)” option on the Lender Election in the form attached to the Memorandum to Lenders posted to the Lenders on September 5, 2023 (a “Lender Commitment”) will thereby (i) consent to the terms of this First Refinancing Amendment and the Cashless Roll Letter dated on or about the date hereof (the “Cashless Roll Letter”) from the Borrowers to the Existing Term Lenders and acknowledged by the Administrative Agent and the 2023 Refinancing Arranger, (ii) become a party to this First Refinancing Amendment and the Cashless Roll Letter, and (iii) agree to continue all (or such lesser amount as the 2023 Refinancing Arranger allocates in its discretion) of its Term B Loans outstanding on the First Refinancing Amendment Effective Date as 2023
Term Loans in a principal amount equal to the aggregate principal amount of its Term B Loans (or such lesser amount as the 2023 Refinancing Arranger allocates in its discretion) (such portion of the 2023 Term Loans, the “Continued Loans” and all such Lenders, collectively, the “Continuing Term Lenders”; the Existing Term Lenders that are not Continuing Term Lenders, collectively, the “Non-Continuing Lenders”);
WHEREAS, each Person (other than a Continuing Term Lender in its capacity as such) that agrees to make 2023 Term Loans (collectively, the “Additional Term Lenders” and together with the Continuing Term Lenders, the “2023 Term Lenders”) will make 2023 Term Loans to the Borrowers on the First Refinancing Amendment Effective Date (the “Additional 2023 Term Loans”) in an amount equal to its Additional 2023 Term Commitment (defined below); and
WHEREAS, each 2023 Term Lender has indicated its willingness to lend 2023 Term Loans up to (A) in the case of Continuing Term Lenders, a principal amount equal to the aggregate principal amount of its Term B Loans (or such lesser amount as the 2023 Refinancing Arranger allocates in its discretion) and (B) in the case of Additional Term Lenders, in an amount equal to its Additional 2023 Term Commitment on the terms and subject to the conditions herein and in the Amended Credit Agreement, the proceeds of which will be used for the purposes specified in this First Refinancing Amendment.
NOW THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrowers, Holding, Intermediate Holdings, the other Loan Parties party hereto, the Administrative Agent and the other parties hereto hereby agree as follows:
Subject to the satisfaction of the conditions to effectiveness specified in Section 5 hereof, with effect from the First Refinancing Amendment Effective Date and immediately upon giving effect to the transactions referred to in Section 3 below, the Credit Agreement and each Exhibit and Schedule thereto is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in the pages of the Amended Credit Agreement attached as Annex 2 hereto.
Subject only to the satisfaction of the conditions to effectiveness specified in Section 5 hereof, and with effect from the First Refinancing Amendment Effective Date:
(a) The Administrative Agent has prepared a schedule which sets forth the new allocated commitments received by it with respect to the 2023 Term Lenders. The Administrative Agent has notified each 2023 Term Lender of its allocated commitment for the 2023 Term Loans. Each 2023 Term Lender hereby agrees to make 2023 Term Loans up to the aggregate principal amount of (x) in the case of
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Continuing Term Lenders, a principal amount equal to the aggregate principal amount of its Term B Loans (or such lesser amount as the 2023 Refinancing Arranger allocates in its discretion) in the form of Continued Loans and (Y) in the case of Additional Term Lenders, in an amount equal to its Additional 2023 Term Commitment in the form of Additional 2023 Term Loans (collectively for all 2023 Term Lenders, the “2023 Term Commitments”) on the First Refinancing Amendment Effective Date. Without prejudice to the foregoing:
(b) The 2023 Term Loans effected pursuant to the exchange mechanism under Section 3(a)(i) hereof shall be allocated ratably to the outstanding Borrowings of the Term B Loans (based upon the relative principal amounts of Borrowings of the Term B Loans subject to different Interest Periods immediately prior to giving effect thereto). Each resulting Borrowing of Continued Loans shall constitute a new “Borrowing” under the Amended Credit Agreement and be subject to the same Interest Period applicable to the Borrowing of the Term Loans to which it relates, which Interest Period shall continue in effect until such Interest Period expires and a new Type of Borrowing is selected in accordance with the provisions of Section 2.03 of the Amended Credit Agreement.
(c) On the First Refinancing Amendment Effective Date, (i) each Non-Continuing Lender shall have its Term B Loans prepaid in cash in full, and the Borrowers shall pay in cash to each Non-Continuing Lender all accrued and unpaid interest on, premiums and fees, and any breakage loss or expenses due under Section 2.14 of the Credit Agreement, in each case related to, such Non-Continuing Lender’s Term B Loans to, but not including, the First Refinancing Amendment Effective Date; and (ii) each Continuing Term Lender with Non-Allocated Existing Term Loans shall have its Non-Allocated Existing Term Loans prepaid in cash in full, and the Borrowers shall pay in cash to each such Continuing Term Lender all accrued and unpaid interest on, premiums and fees related to, such Continuing Term Lender’s Non-Allocated Existing Term Loans to, but not including, the First Refinancing Amendment Effective Date. Each Continuing Term Lender hereby waives any entitlement to any breakage loss or expenses due under Section 2.14 of the Credit Agreement with respect to the repayment of any Term B Loans it holds as an existing Lender which have been replaced or repaid with the 2023 Term Loans on the First Refinancing Amendment Effective Date.
(d) Immediately upon the incurrence of the 2023 Term Loans on the First Refinancing Amendment
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Effective Date, the 2023 Term Loans shall, to the extent permitted by applicable law, be secured by the same collateral and guaranteed on the same terms as the existing Loans. Pursuant to Section 9.01 of the Amended Credit Agreement, the 2023 Term Loans shall have the terms set forth in this First Refinancing Amendment and the Amended Credit Agreement.
(e) Promptly following the First Refinancing Amendment Effective Date, all promissory notes issued under the Credit Agreement, if any, evidencing the Refinanced Debt shall be cancelled, and any Lender of the 2023 Term Loans may request that its 2023 Term Loans be evidenced by a note pursuant to Section 2.07(e) of the Amended Credit Agreement.
(f) The 2023 Term Commitments of the 2023 Term Lenders shall automatically terminate upon the funding of the 2023 Term Loans on the First Refinancing Amendment Effective Date.
(g) Each 2023 Term Lender expressly acknowledges that its obligation under this Section 3 to make the 2023 Term Loans on the First Refinancing Amendment Effective Date is subject solely to the conditions set forth in Section 5 hereof.
In order to induce the 2023 Term Lenders and the Administrative Agent to enter into this First Refinancing Amendment and to induce the 2023 Term Lenders to make the 2023 Term Loans hereunder, each of the Loan Parties hereby represents and warrants to such Lenders and the Administrative Agent that, on and as of the date hereof and the First Refinancing Amendment Effective Date:
(a) the representations and warranties set forth in Article IV of the Credit Agreement and each other Loan Document are true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects), immediately prior to, and immediately after giving effect to, the Amendments and the 2023 Refinancing Term Loan Facility, and the Borrowings thereunder on the First Refinancing Amendment Effective Date; except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties will be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date);
(b) as of the First Refinancing Amendment Effective Date, immediately after the consummation of the transactions to occur on the First Refinancing Amendment Effective Date and the incurrence of indebtedness and obligations on the First Refinancing Amendment Effective Date in connection with this First Refinancing Amendment and the transactions contemplated hereby, the Loan Parties and their Subsidiaries, on a consolidated basis, are Solvent;
(c) no Default or Event of Default has occurred and is continuing or would result from the making of loans hereunder;
(d) the execution, delivery and performance by each Loan Party of the First Refinancing Amendment and each other agreement or instrument contemplated hereby to which such Loan Party is a party, and the consummation of the transactions, are within such Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 6.06 of the Credit Agreement), or require any payment to be made under (i) (x) any indenture, mortgage, deed of trust or loan agreement evidencing Indebtedness in an aggregate principal amount in excess of the Threshold Amount or (y) any other Contractual Obligation to which such Person is a party or affecting such
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Person or the properties of such Person or any of its Restricted Subsidiaries or (ii) any judgment, order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any material Law; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (b)(i) or (b)(ii), to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect;
(f) this First Refinancing Amendment and each other agreement or instrument contemplated hereby has been duly executed and delivered by each Loan Party that is party thereto. This First Refinancing Amendment constitutes a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity;
(g) no material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this First Refinancing Amendment, or for the consummation of the transactions, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect, and (iii) the approvals, consents, exemptions, authorizations, actions, notices and filings in connection with the exercise of remedies pursuant to the Collateral Documents.
(h) the terms of this First Refinancing Amendment, as they relate to the 2023 Refinancing Term Loan Facility, comply with the requirements for Replacement Term Loans pursuant to Section 9.01 of the Credit Agreement.
The agreements, amendments and transactions set out in Sections 2 and 3 above shall become effective and occur upon the first date on which all of the conditions to effectiveness set forth in this Section 5 have been satisfied (such date, the “First Refinancing Amendment Effective Date”) and the Administrative Agent shall notify the Loan Parties, 2023 Term Lenders and the 2023 Refinancing Arranger of the First Refinancing Amendment Effective Date and such notice shall be conclusive and binding:
(a) First Refinancing Amendment. The Administrative Agent shall have received (i) executed counterparts of this First Refinancing Amendment, duly executed and delivered by a Responsible Officer of each of the Loan Parties and (ii) executed Lender Commitments or counterparts to this First Refinancing Amendment, as applicable, duly executed and delivered by each 2023 Term Lender party hereto, or other written confirmation (in form reasonably satisfactory to the Administrative Agent) that any of the foregoing parties has signed a counterpart hereof.
(b) AML/KYC. The Administrative Agent shall have received, to the extent not previously provided, all documentation and other information for the Loan Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, as has been reasonably requested in writing by the Administrative Agent at least five Business Days prior to the First Refinancing Amendment Effective Date, including, to the extent any borrower qualifies as a “legal entity
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customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”, a certificate regarding beneficial ownership as required by the Beneficial Ownership Regulation.
(c) Representations. All representations and warranties of each Parent, Borrower and each other Loan Party contained in this First Refinancing Amendment, Article IV of the Credit Agreement or any other Loan Document are true and correct in material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects), immediately prior to, and immediately after giving effect to, the Amendments and the 2023 Refinancing Term Loan Facility, and the Borrowings thereunder on the First Refinancing Amendment Effective Date; except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties will be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date).
(d) Fees & Expenses. The Administrative Agent shall have received evidence that all fees and expenses as separately agreed in writing among the Borrowers and the 2023 Refinancing Arranger, or otherwise in connection with this First Refinancing Amendment, on the First Refinancing Amendment Effective Date, shall be paid in full in cash.
(e) Borrowing Request. The Administrative Agent shall have received a Borrowing Request in accordance with Section 2.03 of the Credit Agreement.
(f) Prepayment Notice. The Administrative Agent shall have received a written notice of prepayment in respect of the Term B Loans in accordance with Section 2.09 of the Credit Agreement.
(g) Legal Opinions. The Administrative Agent shall have received a customary written legal opinion, dated the First Refinancing Amendment Effective Date and addressed to the Administrative Agent and each of the 2023 Term Lenders from Xxxxxx & Bird LLP, counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and the 2023 Term Lenders.
(h) Closing Deliverables. The Administrative Agent shall have received a certificate of a Responsible Officer of each of the Borrowers, Holding, and Intermediate Holdings dated as of the First Refinancing Amendment Effective Date, (A) certifying that attached thereto is a true and complete copy of the charter or other similar organizational document of such entity, and each amendment thereto (as of the date of such certificate) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such entity is organized (or, if such organizational documents remain unchanged from those previously delivered to the Administrative Agent on the Closing Date, certification by a Responsible Officer of the Borrowers, Holding or Intermediate Holdings (as applicable) of the same), (B) certifying that attached thereto is a copy of the resolutions of the board of directors or managers (or equivalent) of such entity (x) authorizing the execution, delivery and performance of this First Refinancing Amendment and other Loan Documents (as applicable) to which it is a party and any other document delivered in connection herewith on the First Refinancing Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect and (y) authorizing a specified person or persons to execute this First Refinancing Amendment on its behalf, (C) certifying as to the incumbency and specimen signature of each Responsible Officer (or equivalent) executing any Loan Document in connection with this First Refinancing Amendment (or, if the authorized signatories specified in such specimen signatures remain unchanged from those previously delivered to the Administrative Agent on the Closing Date, certification by a Responsible Officer of the Borrowers, Holding or Intermediate Holdings (as applicable) of the same), (D) attaching, to the extent available or required in the relevant jurisdiction, a good standing (or equivalent) certificate as of a recent date for each of the Borrowers, Holding, and Intermediate Holdings (as applicable) from its jurisdiction of organization, and (E) certifying that the documents relating to the Borrowers, Holding and Intermediate
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Holdings (as applicable) and referred to in this paragraph (h) are true, correct and complete and are in full force and effect as of the First Refinancing Amendment Effective Date.
(i) Refinanced Debt. The refinancing of (A) the Term B Loans of the Non-Continuing Lenders and (B) the Non-Allocated Existing Term Loans of the Continuing Term Lenders, in each case, shall have been consummated or, substantially concurrently with the incurrence (or continuation) of the 2023 Term Loans, shall be consummated.
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IN WITNESS WHEREOF, the parties hereto have caused this First Refinancing Amendment to be duly executed and delivered as of the day and year first above written.
XXXXX HOLDINGS LLC, as a Borrower
By: |
XXXXX CAPITAL INC., as a Borrower
By: |
XXXXX BEAUTY HOLDINGS, INC., as Holding
By: |
XXXXX INVESTMENT HOLDINGS LLC, as Intermediate Holdings
By: |
[Signature Page to the First Refinancing Amendment to the Credit Agreement]
Guarantors:
ARCADIA BEAUTY LABS LLC
By: _________________________________
Name: _______________________________
Title:
XXXXXXXXX XXXXXX HOLDINGS, INC.
By: _________________________________
Name: _______________________________
Title:
XXXXXXXXX XXXXXX HOLDINGS, L.L.C.
By: _________________________________
Name: _______________________________
Title:
XXXXXXXXX XXXXXX, X.X.
By: _________________________________
Name: _______________________________
Title:
XXXXXXXXX XXXXXX MANAGEMENT, L.C.
By: _________________________________
Name: _______________________________
Title:
BEAUTY HOLDING LLC
By: _________________________________
Name: _______________________________
Title:
BEAUTY SYSTEMS GROUP LLC
By: _________________________________
Name: _______________________________
Title:
[Signature Page to the First Refinancing Amendment to the Credit Agreement]
DIORAMA SERVICES COMPANY, LLC
By: _________________________________
Name: _______________________________
Title:
INNOVATIONS – SUCCESSFUL SALON SERVICES
By: _________________________________
Name: _______________________________
Title:
LOXA BEAUTY LLC
By: _________________________________
Name: _______________________________
Title:
NEKA SALON SUPPLY, INC.
By: _________________________________
Name: _______________________________
Title:
PROCARE LABORATORIES, INC.
By: _________________________________
Name: _______________________________
Title:
Title:
XXXXX BEAUTY INTERNATIONAL FINANCE LLC
By: _________________________________
Name: _______________________________
Title:
[Signature Page to the First Refinancing Amendment to the Credit Agreement]
XXXXX BEAUTY MILITARY SUPPLY LLC
By: _________________________________
Name: _______________________________
Title:
XXXXX BEAUTY SUPPLY LLC
By: _________________________________
Name: _______________________________
Title:
SALON SUCCESS INTERNATIONAL, LLC
By: _________________________________
Name: _______________________________
Title:
[Signature Page to the First Refinancing Amendment to the Credit Agreement]
BANK OF AMERICA, N.A., as the Administrative Agent, as the Collateral Agent, as the 2023 Refinancing Arranger |
By: |
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[Signature Page to the First Refinancing Amendment to the Credit Agreement]
Annex 1
Total Commitments
Term Lender |
Total Commitments |
Individual commitments on file with the Administrative Agent.
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$399,000,000.00 |
Annex 2
Amended Credit Agreement
[attached]
