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Exhibit
10.2
EXECUTION COPY
SUPPLEMENT TO
SIXTH AMENDED AND RESTATED
CREDIT AGREEMENT
This SUPPLEMENT, dated as of
January 26, 2007 (this “ Supplement ”), to
the Existing Credit Agreement referred to below, is among WEIGHT
WATCHERS INTERNATIONAL, INC., a Virginia corporation (the “
Borrower ”), certain Lenders (such term, and other
capitalized terms used in this Supplement, to have the meanings set
forth in Section I below) and The Bank of Nova Scotia, as
the Administrative Agent for the Lenders, with Credit Suisse
Securities (USA) LLC and JPMorgan Securities Inc. acting as Joint
Bookrunners and Joint Lead Arrangers for the Term A-1 Loans and the
Term B Loans, and Bank of America, N.A. and Fortis Capital Corp.,
acting as Co-Documentation Agents.
W I T
N E S S E T H
:
WHEREAS, pursuant to the
Sixth Amended and Restated Credit Agreement, dated as of
May 8, 2006 (as further amended, supplemented or otherwise
modified on or prior to the date hereof, the “ Existing
Credit Agreement ”), among the Borrower, the Lenders and
the Administrative Agent, the Lenders made (and remain committed to
make) Credit Extensions to the Borrower; and
WHEREAS, pursuant to clause
(b) of Section 2.1.6 of the Existing Credit Agreement,
the Borrower has requested (i) up to $700,000,000 of loans to
be provided under a new tranche of term loans (the “ Term
A-1 Loans ”), of which $135,000,000 will be provided on
the Supplement Effective Date and up to $565,000,000 will be
provided on the Delayed Draw Date and (ii) $500,000,000 of
loans to be provided under a new tranche of term loans (the “
Term B Loans ”) on the Supplement Effective Date, and
this Supplement is being executed and delivered to evidence the
terms of, and give effect to the making of, such Term A-1 Loans and
Term B Loans;
NOW, THEREFORE, in
consideration of the agreements herein contained and pursuant to
Section 2.1.6 of the Existing Credit Agreement, the Existing
Credit Agreement is hereby supplemented as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain
Definitions . The following terms (whether or not underscored)
when used in this Supplement shall have the following meanings
(such meanings to be equally applicable to the singular and plural
form thereof):
“ Delayed Draw
Amount ” means the aggregate principal amount of up to
$565,000,000 of Term A-1 Loans.
“ Delayed Draw
Date ” means the date (which shall be no later than
February 16, 2007) on which the Borrowing of the Delayed Draw
Amount is made following the Supplement Effective Date.
“ Existing Credit
Agreement ” is defined in the first recital
.
“ Initial Term A-1
Loan Amount ” means the aggregate principal amount of
$135,000,000 of Term A-1 Loans.
“ Supplement
” is defined in the preamble .
“ Supplement
Effective Date ” is defined in Section 3.1
.
“ Term A-1 Loan
Commitment ” is defined in Section 2.1(a)
.
“ Term B Loan
Commitment ” is define in Section 2.1(b)
.
SECTION 1.2. Other
Definitions . Terms for which meanings are provided in the
Existing Credit Agreement are, unless otherwise defined herein or
the context otherwise requires, used in this Supplement with such
meanings.
ARTICLE II
TERMS OF TERM A-1 LOANS AND
TERM B LOANS
SECTION 2.1.
Commitment . Subject to the terms hereof, the Borrower, the
Lenders party to this Supplement and the Administrative Agent agree
that:
(a) in a single Borrowing
occurring on the Supplement Effective Date, each Lender that has a
Term A-1 Loan Commitment will make Term A-1 Loans to the Borrower
in an amount equal to such Lender’s Percentage of the Initial
Term A-1 Loan Amount, and in a single Borrowing occurring on the
Delayed Draw Date, each Lender that has a Term A-1 Commitment will
make Term A-1 Loans to the Borrower in an amount equal to such
Lender’s Percentage of the Delayed Draw Amount (with the
commitment of each such Lender described in this clause (a)
referred to as its “ Term A-1 Loan Commitment
”) and no commitment fees shall be payable to any Lenders in
respect of the Delayed Draw Amount;
(b) in a single Borrowing
occurring on the Supplement Effective Date, each Lender that has a
Term B Loan Commitment will make Term B Loans to the Borrower in an
amount equal to such Lender’s Percentage of the aggregate
amount of the Borrowing of Term B Loans requested by the Borrower
to be made on such day (with the commitment of each such Lender
described in this clause (b) referred to as its
“ Term B Loan Commitment ”);
(c) each applicable
Lender’s Percentage of Term A-1 Loans and/or Term B Loans
shall initially be as set forth opposite its name on
Schedule II hereto under the applicable column heading
and such Schedule II hereto shall be deemed to supplement
Schedule II to the Existing Credit Agreement; and
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(d) no amounts paid or
prepaid with respect to any Term A-1 Loans or Term B Loans may be
reborrowed.
SECTION 2.2. Lenders Not
Permitted or Required to Make Loans . No Lender shall be
permitted or required to, and the Borrower shall not request that
any Lender, make (a) any Term A-1 Loan if, after giving effect
thereto, the aggregate original principal amount of all the Term
A-1 Loans (i) of all Lenders would exceed the Term A-1 Loan
Commitment Amount or (ii) of such Lender would exceed such
Lender’s Percentage of the Term A-1 Loan Commitment Amount or
(b) any Term B Loan if, after giving effect thereto, the
aggregate original principal amount of all the Term B Loans
(i) of all Lenders would exceed the Term B Loan Commitment
Amount or (ii) of such Lender would exceed such Lender’s
Percentage of the Term B Loan Commitment Amount.
ARTICLE III
CONDITIONS TO
EFFECTIVENESS
SECTION 3.1. Effective
Date . This Supplement shall become effective on the date (the
“ Supplement Effective Date ”) when all of the
conditions set forth in this Article have been
satisfied.
SECTION 3.1.1. Execution
of Counterparts . The Administrative Agent shall have received
counterparts of this Supplement, executed on behalf of the
Borrower, the Sole Lead Arranger, the Administrative Agent and each
Lender that will initially make the Term A-1 Loans and/or the Term
B Loans.
SECTION 3.1.2.
Resolutions, etc. The Administrative Agent shall have
received from the Borrower (x) a copy of a good standing
certificate dated a date reasonably close to the Supplement
Effective Date and (y) a certificate, dated the Supplement
Effective Date, of its Secretary or Assistant Secretary as
to:
(a) resolutions of the
Borrower’s Board of Directors then in full force and effect
authorizing the execution, delivery and performance of
(i) this Supplement, (ii) the Amendment and
(iii) the Notes evidencing, and the borrowing of, the Term A-1
Loans and the Term B Loans; and
(b) the incumbency and
signatures of the Borrower’s Authorized Officers authorized
to execute and deliver this Supplement and the Notes evidencing the
Term A-1 Loans and the Term B Loans;
upon which certificate each Lender may
conclusively rely until such Lender shall have received a further
certificate of the Borrower canceling or amending the prior
certificate.
SECTION 3.1.3. Delivery of
Notes . The Administrative Agent shall have received a Note for
the account of each applicable Lender that has requested a Note
evidencing such Lender’s Term A-1 Loans or Term B Loans, duly
executed and delivered by an Authorized Officer of the
Borrower.
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SECTION 3.1.4. Affirmation
and Consent . The Administrative Agent shall have received an
affirmation and consent substantially in the form of Exhibit
A hereto, dated the Supplement Effective Date and duly executed
by an Authorized Officer of each Guarantor.
SECTION 3.1.5. Opinions of
Counsel . The Administrative Agent shall have received
opinions, dated the Supplement Effective Date and addressed to the
Administrative Agent and all Lenders, from:
(a) Simpson
Thacher & Bartlett LLP, New York counsel to the Borrower
and each other Obligor, in form and substance satisfactory to the
Administrative Agent; and
(b) Hunton &
Williams LLP, Virginia counsel to the Borrower, in form and
substance satisfactory to the Administrative Agent.
SECTION 3.1.6. Fees and
Expenses, etc . The Administrative Agent shall have received
all fees, costs and expenses due and payable pursuant to
Section 11.3 of the Existing Credit Agreement or otherwise
owing to a Lender in connection with the making of the Loans
contemplated by this Supplement.
SECTION 3.1.7. First
Amendment to Existing Credit Agreement . Prior to, or
contemporaneous with, the effectiveness of this Supplement, the
First Amendment to the Existing Credit Agreement, in form and
substance satisfactory to the Sole Lead Arranger, shall have been
executed and delivered by the requisite parties and all conditions
precedent to its effectiveness shall have been (or, contemporaneous
with the effectiveness of this Supplement, will be)
satisfied.
SECTION 3.2. Delayed Draw
Date . On the Delayed Draw Date, (a) the Affiliate
Purchase shall be consummated simultaneously with the funding of
the Delayed Draw Amount and (b) the Joint Lead Arrangers shall
receive all fees, costs and expenses owing to them, including,
without limitation, pursuant to the terms of their fee letter with
the Borrower, dated January 8, 2007.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES
To induce the Lenders and the
Administrative Agent to enter into this Supplement, and to make the
Term A-1 Loans and the Term B Loans on the Supplement Effective
Date, the Borrower represents and warrants such Persons as set
forth below.
SECTION 4.1. Validity,
etc. This Supplement (and the Existing Credit Agreement as
supplemented hereby) constitutes the legal, valid and binding
obligation of the Borrower enforceable in accordance with its terms
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general
equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair
dealing.
SECTION 4.2.
Representations and Warranties, etc. Both before and after
giving effect to this Supplement, the representations and
warranties contained in Section 5.2.1 of the
Existing
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Credit Agreement are true and correct in
all material respects as of the date hereof with the same effect as
if then made (unless stated to relate solely to an earlier date, in
which case such representations and warranties were true and
correct in all material respects as of such earlier
date).
SECTION 4.3. Liens
Unimpaired . After giving effect to this Supplement and the
incurrence of the Term A-1 Loans and the Term B Loans, neither the
modification of the Existing Credit Agreement effected pursuant to
this Supplement nor the execution, delivery, performance or
effectiveness of this Supplement and the incurrence of the Debt
represented by the Term A-1 Loans and the Term B Loans:
(a) impairs the validity,
effectiveness or priority of the Liens granted in favor of the
Secured Parties pursuant to the Loan Documents, and such Liens
continue unimpaired with the same priority to secure repayment of
all Obligations (including any Obligations arising in connection
with the making of the Term A-1 Loans and the Term B Loans),
whether heretofore or hereafter incurred; or
(b) requires that any new
filings be made or other action taken to perfect or to maintain the
perfection of such Liens.
ARTICLE V
MISCELLANEOUS
SECTION 5.1.
Cross-References . References in this Supplement to any
Article or Section are, unless otherwise specified or otherwise
required by the context, to such Article or Section of this
Supplement.
SECTION 5.2. Loan Document
Pursuant to Existing Credit Agreement . This Supplement is a
Loan Document executed pursuant to the Existing Credit Agreement
a
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