Exhibit 10.1
EXECUTION COPY
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THIRD AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT
Dated as of April 27, 2001
among
NBTY, INC.,
a Borrower,
HOLLAND & BARRETT HOLDINGS LIMITED,
as Foreign Subsidiary Borrower,
The Several Lenders from Time
to Time Parties Hereto,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
_______________________________________
JPMORGAN, a division of Chase Securities Inc.,
as Bookrunner and Lead Arranger
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JPMorgan [LOGO]
Table of Contents
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SECTION 1. DEFINITIONS 1
1.1. Defined Terms 1
1.2. Other Definitional Provisions 22
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 22
2.1. Revolving Credit Commitments 22
2.2. Procedure for Revolving Credit Borrowing 23
2.3. Repayment of Revolving Credit Loans; Evidence of Debt 23
2.4. Termination or Reduction of Revolving Credit Commitments 24
2.5. Swing Line Commitment 25
2.6. Term Loan Commitments 26
2.7. Procedure for Term Loan Borrowing 26
2.8. Repayment of Term Loans; Evidence of Debt 27
2.9. Termination or Reduction of Term Loan Commitments 29
2.10. New Revolving Credit Commitments 29
2.11. Procedure for New Revolving Credit Borrowing 30
2.12. Repayment of New Revolving Credit Loans; Evidence of
Debt 30
2.13. Termination or Reduction of New Revolving Credit
Commitments 32
SECTION 3. AMOUNT AND TERMS OF POUNDS STERLING COMMITMENT 32
3.1. Pounds Sterling Commitments 32
3.2. Making the Pounds Sterling Loans 33
3.3. Repayment of Pounds Sterling Loans; Evidence of Debt 34
SECTION 4. LETTERS OF CREDIT 34
4.1. Letters of Credit 34
4.2. Procedure for Issuance of Letters of Credit 35
4.3. Participating Interests 36
4.4. Payments 36
4.5. Further Assurances 37
4.6. Obligations Absolute 37
4.7. Letter of Credit Application 37
4.8. Purpose of Letters of Credit 38
SECTION 5. GENERAL PROVISIONS 38
5.1. Interest Rates and Payment Dates 38
5.2. Conversion and Continuation Options 38
5.3. Minimum Amounts of Tranches 39
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5.4. Optional and Mandatory Prepayments 39
5.5. Commitment Fees; Other Fees 41
5.6. Computation of Interest and Fees 43
5.7. Inability to Determine Interest Rate 43
5.8. Pro Rata Treatment and Payments 44
5.9. Illegality 46
5.10. Requirements of Law 47
5.11. Indemnity 48
5.12. Taxes 48
5.13. Use of Proceeds 50
5.14. Change in Lending Office; Replacement of Lender 51
SECTION 6. REPRESENTATIONS AND WARRANTIES 51
6.1. Financial Condition 51
6.2. No Change 52
6.3. Corporate Existence; Compliance with Law 52
6.4. Corporate Power; Authorization; Enforceable Obligations 52
6.5. No Legal Bar 53
6.6. No Material Litigation 53
6.7. No Default 53
6.8. Ownership of Property; Liens 53
6.9. Intellectual Property 54
6.10. No Burdensome Restrictions 54
6.11. Taxes 54
6.12. Federal Regulations 54
6.13. ERISA 55
6.14. Investment Company Act; Other Regulations 55
6.15. Subsidiaries 55
6.16. Environmental Matters 55
6.17. Solvency 56
6.18. Security Documents 56
6.19. Accuracy of Information 57
SECTION 7. CONDITIONS PRECEDENT 57
7.1. Conditions to Closing Date 57
7.2. Conditions to Each Extension of Credit 60
7.3. Conditions to Initial Extension of Credit to the
Foreign Subsidiary Borrower 60
7.4. Conditions to Each Extension of Credit under the New
Revolving Credit Commitments 61
SECTION 8. AFFIRMATIVE COVENANTS 62
8.1. Financial Statements 62
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8.2. Certificates; Other Information 63
8.3. Payment of Obligations 64
8.4. Maintenance of Existence 64
8.5. Maintenance of Property; Insurance 64
8.6. Inspection of Property; Books and Records; Discussions 64
8.7. Notices 65
8.8. Environmental Laws 65
8.9. Additional Subsidiaries 66
SECTION 9. NEGATIVE COVENANTS 67
9.1. Financial Condition Covenants 67
9.2. Limitation on Indebtedness 68
9.3. Limitation on Liens 69
9.4. Limitation on Guarantee Obligations 70
9.5. Limitation on Fundamental Changes 70
9.6. Limitation on Sale of Assets 71
9.7. Limitation on Dividends and Other Restricted Payments 71
9.8. Limitation on Capital Expenditures 71
9.9. Limitation on Investments, Loans and Advances 71
9.10. Limitation on Optional Payments and Modifications of
Debt Instruments 72
9.11. Limitation on Transactions with Affiliates 72
9.12. Limitation on Sales and Leasebacks 73
9.13. Limitation on Changes in Fiscal Year 73
9.14. Limitation on Negative Pledge Clauses 73
9.15. Limitation on Lines of Business 73
SECTION 10. GUARANTEE 73
10.1. Guarantee 73
10.2. No Subrogation 74
10.3. Amendments, etc. with respect to the Foreign Subsidiary
Obligations; Waiver of Rights 74
10.4. Guarantee Absolute, Irrevocable and Unconditional 75
10.5. Reinstatement 76
10.6. Payments 76
SECTION 11. EVENTS OF DEFAULT 76
SECTION 12. THE ADMINISTRATIVE AGENT AND THE ARRANGER 80
12.1. Appointment 80
12.2. Delegation of Duties 80
12.3. Exculpatory Provisions 80
12.4. Reliance by Administrative Agent 81
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12.5. Notice of Default 81
12.6. Non-Reliance on Administrative Agent and Other Lenders 81
12.7. Indemnification 82
12.8. Administrative Agent in Its Individual Capacity 82
12.9. Successor Administrative Agent 83
12.10. Issuing Lender and Collateral Agent 83
SECTION 13. MISCELLANEOUS 83
13.1. Amendments and Waivers 83
13.2. Notices 84
13.3. No Waiver; Cumulative Remedies 85
13.4. Survival of Representations and Warranties 85
13.5. Payment of Expenses and Taxes 85
13.6. Successors and Assigns; Participation and Assignments 86
13.7. Adjustments; Set-off 89
13.8. Counterparts 89
13.9. Severability 90
13.10. Integration 90
13.11. GOVERNING LAW 90
13.12. Submission to Jurisdiction; Waivers 90
13.13. Acknowledgements 91
13.14. WAIVERS OF JURY TRIAL 91
13.15. Power of Attorney 91
13.16. Judgment 92
13.17. Confidentiality 92
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SCHEDULES:
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I. Commitments; Addresses
II. Domestic Subsidiaries; Foreign Subsidiaries
6.1 Contingent Liabilities
6.6 Litigation
6.8 Real Property Owned and Leased
9.2 Existing Indebtedness
9.3 Existing Liens
9.4 Existing Guarantee Obligations
EXHIBITS:
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A-1 Form of Revolving Credit Note
A-2 Form of Swing Line Note
A-3 Form of Term Note
A-4 Form of New Revolving Credit Note
B Guarantee and Collateral Agreement
C Form of Swing Line Loan Participation Certificate
E Form of Assignment and Acceptance
F-1 Form of Opinion of Michael C. Duban
F-2 Form of Opinion of counsel to the Foreign Subsidiary Borrower
G Form of Closing Certificate
H Form of Tax Certificate
I Form of Acknowledgment and Consent
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THIRD AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT, dated as
of April 27, 2001, among NBTY, INC., a Delaware corporation (the
"Company"), HOLLAND & BARRETT HOLDINGS LIMITED (the "Foreign Subsidiary
Borrower" and together with the Company, the "Borrowers"), the several
banks and other financial institutions from time to time parties hereto
(the "Lenders") and THE CHASE MANHATTAN BANK, a New York banking
corporation, as administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Borrowers, certain lenders and the Administrative Agent
are parties to that certain Second Amended and Restated Credit and
Guarantee Agreement, dated as of July 17, 2000 (the "Existing Credit
Agreement"); and
WHEREAS, the Company intends to acquire from Whole Foods Market, Inc.
and from its wholly-owned subsidiary, Whole Foods Market Group, Inc., all
of the membership interests in WFM NatureSmart, LLC, BioSmart Direct Sales,
LLC and Physiologics, LLC (collectively, "NatureSmart") and substantially
all of the assets of Global Health Sciences, Inc., Global Health Sub, Inc.,
Raven Industries, Inc. (dba Omni-Pak Industries) and D&F Industries, Inc.
(collectively, "Global Health"); and
WHEREAS, the Borrowers have requested the Lenders to amend and
restate the Existing Credit Agreement to provide, among other things, for
the financing of the Global Health Acquisition (as defined below) and the
NatureSmart Acquisition (as defined below), and to continue to provide
financing for the working capital and general corporate purposes of the
Company and its Subsidiaries; and
WHEREAS, the Lenders are willing to enter into this Agreement to
amend and restate the Existing Credit Agreement but only on the terms and
conditions hereof, including the condition precedent that this Agreement be
executed and delivered by each Lender hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, the parties hereto agree to amend and restate
the Existing Credit Agreement in its entirety to read as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR Loans": Loans, the rate of interest applicable to which is based
upon the Alternate Base Rate.
"Acquisition": any transaction or series of related transactions by
which the Company or any of its Subsidiaries (a) acquires any going
business or all or substantially
all of the assets of any Person, whether through purchase of assets, merger
or otherwise or (b) directly or indirectly acquires (in one transaction or
in a series of related transactions) at least (i) a majority (in number of
votes) of the Capital Stock having ordinary voting power for the election
of directors (or other managers) of any Person or (ii) a majority of the
ownership interests in any Person.
"Affiliate": of any Person, (a) any other Person (other than a wholly
owned Subsidiary of such Person) which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person
or (b) any other Person who is a director or officer of (i) such Person,
(ii) any Subsidiary of such Person or (iii) any Person described in clause
(a) above. For purposes of this definition, a Person shall be deemed to be
"controlled by" such other Person if such other Person possesses, directly
or indirectly, power either to (A) vote 10% or more of the securities
having ordinary voting power for the election of directors of such first
Person or (B) direct or cause the direction of the management and policies
of such first Person whether by contract or otherwise.
"Aggregate Available New Revolving Credit Commitments": as at any
date of determination with respect to all New Revolving Credit Lenders, an
amount in U.S. Dollars equal to the Available New Revolving Credit
Commitments of all New Revolving Credit Lenders on such date.
"Aggregate Available Revolving Credit Commitments": as at any date of
determination with respect to all Lenders, an amount in U.S. Dollars equal
to the Available Revolving Credit Commitments of all Lenders on such date.
"Aggregate Available Term Loan Commitments": as at any date of
determination with respect to all Lenders, an amount in U.S. Dollars equal
to the Available Term Loan Commitments of all Lenders on such date.
"Aggregate Existing New Revolving Credit Commitments": the aggregate
amount of the Existing New Revolving Credit Commitments of all New
Revolving Credit Lenders.
"Aggregate New Revolving Credit Commitments": the aggregate amount of
the New Revolving Credit Commitments of all New Revolving Credit Lenders.
"Aggregate New Revolving Credit Commitment Increases": the aggregate
amount of the New Revolving Credit Commitment Increases of all New
Revolving Credit Lenders.
"Aggregate New Revolving Credit Outstanding": as at any date of
determination with respect to any New Revolving Credit Lender, the
aggregate unpaid principal amount of such New Revolving Credit Lender's New
Revolving Credit Loans on such date.
"Aggregate Pounds Sterling Outstanding": as at any date of
determination with respect to any Lender, an amount in Pounds Sterling
equal to the aggregate unpaid principal amount of such Lender's Pounds
Sterling Loans.
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"Aggregate Revolving Credit Commitments": the aggregate amount of the
Revolving Credit Commitments of all the Lenders.
"Aggregate Revolving Credit Outstanding": as at any date of
determination with respect to any Lender, the sum of (a) the aggregate
unpaid principal amount of such Lender's Revolving Credit Loans on such
date and (b) such Lender's Revolving Credit Commitment Percentage of the
aggregate Letter of Credit Obligations and Swing Line Loans on such date
and (c) the U.S. Dollar Equivalent of the Aggregate Pounds Sterling
Outstanding of such Lender.
"Aggregate Term Loan Commitments": the aggregate amount of the Term
Loan Commitments of all the Lenders.
"Agreement": this Third Amended and Restated Credit and Guarantee
Agreement, as the same may be amended, supplemented or otherwise modified
from time to time.
"Agreement Currency": as defined in subsection 13.16(b).
"Alternate Base Rate": for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of
Federal Funds Effective Rate for such day plus 1/2% per annum. For purposes
hereof: "Prime Rate" means a rate per annum equal to the prime rate of
interest announced by Chase from time to time, changing when and as said
prime rate changes; and "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for the day
of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"Amendment Fee": as defined in subsection 5.5(c).
"Annualized": with respect to the determination of any financial
results for any period, the applicable financial result for the four fiscal
quarters ended on such date.
"Applicable Margin": for each Type of Loan and for purposes of
Section 5.5, the rate per annum set forth under the relevant column heading
below based on the ratio of Consolidated Indebtedness of the Company and
its Subsidiaries to Consolidated EBITDA of the Company and its
Subsidiaries, as most recently determined in accordance with subsection
8.1(a) or (b), for any quarterly period:
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Applicable Margin
Relevant Ratio of For Eurodollar Applicable Margin Applicable
Consolidated Indebtedness Loans and Pounds for Alternate Margin for
to Consolidated EBITDA Sterling Loans Base Rate Loans Commitment Fee
- ------------------------- ----------------- ----------------- --------------
<s> <c> <c> <c>
Greater than or equal to 2.50% 1.50% 0.50%
2.50x ("Level I")
Less than 2.50x but greater 2.25% 1.25% 0.375%
than or equal to 2.00x
("Level II")
Less than 2.00x but greater 2.00% 1.00% 0.375%
than or equal to 1.50x
("Level III")
Less than 1.50x but greater 1.50% 0.50% 0.25%
than or equal to 1.00x
("Level IV")
Less than 1.00x ("Level V") 1.00% -0- 0.25%
Up to and including March 31, 2002, notwithstanding the relevant ratio of
Consolidated Indebtedness to Consolidated EDITDA, the applicable pricing
shall not be lower than the pricing set forth in Level II, but may be as
set forth in Level I.
If and in the event the financial statements required to be delivered
pursuant to subsection 8.1(a) or 8.1(b), as applicable, and the related
compliance certificate required to be delivered pursuant to subsection
8.2(b), are delivered on or prior to the date when due (or, in the case of
the fourth quarterly period of each fiscal year of the Company, if
financial statements which satisfy the requirements of, and are delivered
within the time period specified in, subsection 8.1(b) and a related
compliance certificate which satisfies the requirements of, and is
delivered within the time period specified in, subsection 8.2(b), with
respect to any such quarterly period are so delivered within such time
periods), then the Applicable Margin during the period from the date that
is five Business Days after the date upon which such financial statements
were due to be delivered shall be the Applicable Margin as set forth in the
relevant column heading above; provided, however, that in the event that
the financial statements delivered pursuant to subsection 8.1(a) or 8.1(b),
as applicable, and the related compliance certificate required to be
delivered pursuant to subsection 8.2(b), are not delivered when due, then:
(a) if such financial statements and certificate are delivered
after the date such financial statements and certificate were
required to be delivered (without giving effect to any applicable
cure period) and the Applicable Margin increases from that previously
in effect as a result of the delivery of such financial statements,
then the Applicable Margin during the period from the date upon which
such financial statements were required to be
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delivered (without giving effect to any applicable cure period) until
the date upon which they actually are delivered shall, except as
otherwise provided in clause (c) below, be the Applicable Margin as
so increased;
(b) if such financial statements and certificate are delivered
after the date such financial statements and certificate were
required to be delivered and the Applicable Margin decreases from
that previously in effect as a result of the delivery of such
financial statements, then such decrease in the Applicable Margin
shall not become applicable until the date upon which such financial
statements and certificate actually are delivered; and
(c) if such financial statements and certificate are not
delivered prior to the expiration of the applicable cure period,
then, effective upon such expiration, for the period from the date
upon which such financial statements and certificate were required to
be delivered (after the expiration of the applicable cure period)
until two Business Days following the date upon which they actually
are delivered, the Applicable Margin in respect of Revolving Credit
Loans, New Revolving Credit Loans and Term Loans shall be 3.00%, in
the case of Eurodollar Loans, and 2.00%, in the case of Alternate
Base Rate Loans, and 1/2%, in the case of subsection 5.5 (it being
understood that the foregoing shall not limit the rights of the
Administrative Agent and the Lenders set forth in Section 11).
"Asset Sale": any sale, sale-leaseback, or other disposition by
the Company or any Subsidiary of any of its property or assets,
including the stock of any Subsidiary, other than any sale, sale-
leaseback or other disposition permitted under subsections 9.6(a)
through (d) or subsection 9.12.
"Assignee": as defined in subsection 13.6(c).
"Available New Revolving Credit Commitment": as at any date of
determination with respect to any New Revolving Credit Lender, an
amount in U.S. Dollars equal to the excess, if any, of (a) the amount
of such New Revolving Credit Lender's New Revolving Credit Commitment
in effect on such date over (b) the Aggregate New Revolving Credit
Outstanding of such New Revolving Credit Lender on such date.
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars
equal to the excess, if any, of (a) the amount of such Lender's
Revolving Credit Commitment in effect on such date over (b) the
Aggregate Revolving Credit Outstanding of such Lender on such date.
"Available Term Loan Commitment": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars
equal to the excess, if any, of (a) the amount of such Lender's Term
Loan Commitment in effect on such date over (b) the aggregate
principal amount of Term Loans theretofore made hereunder by such
Lender.
"Benefitted Lender": as defined in subsection 13.7.
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"Board": the Board of Governors of the Federal Reserve System
(or any successor thereto).
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.2, 2.5(a), 2.7, 2.11, 3.2 or 4.2 as a date
on which a Borrower requests the Lenders to make Loans hereunder or
issue a Letter of Credit.
"Business Day": (a) for all purposes other than as covered by
clause (b) below, a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by
law to close and (b) with respect to all notices and determinations
in connection with, and payments of principal and interest on,
Eurodollar Loans and Loans in Pounds Sterling, any day which is a
Business Day described in clause (a) and which is also a London
Banking Day.
"Capital Expenditures": direct or indirect (by way of the
acquisition of securities of a Person or the expenditure of cash or
the incurrence of Indebtedness) expenditures (other than expenditures
in connection with Acquisitions permitted hereunder) in respect of
the purchase or other acquisition of fixed or capital assets.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities
of one year or less from the date of acquisition and overnight bank
deposits of any Lender or of any commercial bank having capital and
surplus in excess of $500,000,000, (c) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of
clause (b) of this definition, having a term of not more than 30 days
with respect to securities issued or fully guaranteed or insured by
the United States Government, (d) commercial paper of a domestic
issuer rated at least A-2 by Standard and Poor's Ratings Group
("S&P") or P-2 by Moody's, (e) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may
be) are rated at least A by S&P or A by Moody's (or the equivalent
rating by either such rating agency for such type of securities), (f)
securities with maturities of one year or less from the date of
acquisition backed by standby letters of credit issued by any
commercial bank satisfying the requirements of clause (b) of this
definition or (g) shares of money market mutual or similar funds
which invest exclusively in assets satisfying the requirements of
clauses (a) through (f) of this definition.
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"Chase": The Chase Manhattan Bank.
"Class": the classification of loans as New Revolving Credit
Loans, Revolving Credit Loans, Term Loans, Swing Line Loans or Pounds
Sterling Loans, each of which categories shall be deemed to be a
"Class" of Loans.
"Closing Date": the date on which all of the conditions
precedent set forth in subsection 7.1 shall have been met or waived.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Commercial Letters of Credit": as defined in subsection
4.1(ii).
"Commitments": the collective reference to the New Revolving
Credit Commitments, Revolving Credit Commitments, the Term Loan
Commitments, the Swing Line Commitment and the Pounds Sterling
Commitments.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Company and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Debt Service": for any period, the sum of (a) the
Annualized Consolidated Interest Expense of the Company for such
period, plus (b) the principal amounts of all long-term indebtedness
payable by the Company and its Subsidiaries during the next
succeeding twelve-month period determined in accordance with GAAP,
excluding, however, from such indebtedness the Revolving Credit
Loans, the Swing Line Loans and the Pounds Sterling Loans during the
final twelve months of the Revolving Credit Commitment Period.
"Consolidated EBITDA": for any period, the sum of (i)
Annualized Consolidated Net Income for such period, (ii) Annualized
Consolidated Interest Expense for such period and (iii) the
Annualized amount of taxes, depreciation and amortization deducted
from earnings in determining such Consolidated Net Income.
"Consolidated Fixed Charge Coverage Ratio": for any period, the
ratio of (i) the result of (A) the Consolidated EBITDA of the Company
and its Subsidiaries minus (B) their Annualized Capital Expenditures
to (ii) the Consolidated Debt Service of the Company and its
Subsidiaries, in the case of clauses (i) and (ii), for such period;
provided that, to the extent included in determining such Annualized
Capital Expenditures, Capital Expenditures made by the Foreign
Subsidiary Borrower during the fiscal year ended September 30, 1998
relating to point of sale equipment, not exceeding, in the aggregate,
$10,000,000, shall be excluded from such Annualized Capitalized
Expenditures.
"Consolidated Indebtedness": at a particular date, all
Indebtedness of the Company and its Subsidiaries, determined on a
consolidated basis.
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"Consolidated Interest Expense": for any fiscal period, the
amount which would, in conformity with GAAP, be set forth opposite
the caption "interest expense" (or any like caption) on a
consolidated income statement of the Company and its Subsidiaries for
such period.
"Consolidated Net Income": for any fiscal period, the
consolidated net income (or deficit) of the Company and its
Subsidiaries for such period (taken as a cumulative whole),
determined on a consolidated basis in accordance with GAAP; provided,
that any non-cash extraordinary gains and losses shall be excluded in
determining Consolidated Net Income.
"Consolidated Net Worth": at a particular date, all amounts
which would, in conformity with GAAP, be included on a consolidated
balance sheet of the Company and its Subsidiaries under
"stockholders' equity" (or any like caption) as of such date.
"Continuing Directors": the directors of the Company on the
Existing Closing Date and each other director, if such other
director's nomination for election to the Board of Directors of the
Company is recommended by a majority of the then Continuing
Directors.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Default": any of the events specified in Section 11, whether
or not any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency
of the United States of America.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
"Drawdown Fee": as defined in subsection 5.5(c).
"English Security Documents": the collective reference to (i) a
Debenture by the Company in favor of the Administrative Agent for the
benefit of the Lenders of 65% of the Capital Stock of Holland &
Barrett and 65% of the Capital Stock of Vitamin World Limited in form
and substance reasonably satisfactory to the Administrative Agent and
(ii) agreements in form and substance satisfactory to the
Administrative Agent providing for a lien on the material assets of
the Foreign Subsidiary Borrower securing its Obligations.
"Environmental Complaint": any complaint, order, citation,
notice or other written communication from any Person with respect to
the existence or alleged existence of a violation of any
Environmental Laws or legal liability resulting from air emissions,
water discharges, noise emissions, Hazardous Material or any other
environmental, health or safety matter.
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"Environmental Laws": any and all applicable Federal, foreign,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, and requirements of any Governmental
Authority and any and all common law requirements, rules and bases of
liability regulating, relating to or imposing liability or standards
of conduct concerning pollution or protection of the environment or
the Release or threatened Release of Hazardous Materials, as now or
hereafter in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Liabilities": at any time, all reserve
requirements in effect at such time (including, without limitation,
basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurocurrency Rate": with respect to any Pounds Sterling Loan
for the relevant Interest Period, the rate determined by the
Administrative Agent to be the rate at which Chase offers to place
deposits in Pounds Sterling with first-class banks in the London
interbank market at approximately 11 A.M. (London time) two Business
Days prior to the first day of such Interest Period, in the
approximate amount of Chase's relevant Pounds Sterling Loan and
having a maturity approximately equal to such Interest Period. The
Eurocurrency Rate shall be rounded to the next higher multiple of
1/16 of 1% if the rate is not such a multiple.
"Eurodollar Base Rate": with respect to a Eurodollar Loan for
the relevant Interest Period, the applicable London interbank offered
rate for deposits in U.S. Dollars appearing on Telerate Page 3750 as
of 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period, and having a maturity approximately equal to
such Interest Period. If no London interbank offered rate of such
maturity then appears on Telerate Page 3750, then the Eurodollar Base
Rate shall be equal to the London interbank offered rate for deposits
in U.S. Dollars maturing immediately before or immediately after such
maturity, whichever is higher, as determined by the Administrative
Agent from Telerate Page 3750. If Telerate Page 3750 is not
available, the applicable Eurodollar Base Rate for the relevant
Interest Period shall be the rate determined by the Administrative
Agent to be the rate at which Chase offers to place deposits in U.S.
Dollars with first-class banks in the London interbank market at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period, in the approximate amount of
Chase's relevant portion of the Eurodollar Loan and having a maturity
approximately equal to such Interest Period.
"Eurodollar Loans": Revolving Credit Loans and Term Loans the
rate of interest applicable to which is based upon the Eurodollar
Rate.
"Eurodollar Rate": with respect to a Eurodollar Loan for the
relevant Interest Period, the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period,
9
divided by (b) one minus the Eurocurrency Liabilities (expressed as a
decimal) applicable to such Interest Period. The Eurodollar Rate
shall be rounded to the next higher multiple of 1/16 of 1% if the
rate is not such a multiple.
"Event of Default": any of the events specified in Section 11,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Existing Closing Date": July 17, 2000.
"Existing New Revolving Credit Commitment": as to any New
Revolving Credit Lender at any time, its obligation to make New
Revolving Credit Loans to the Company in an aggregate amount not to
exceed at any time outstanding the U.S. Dollar amount set forth
opposite such New Revolving Credit Lender's name in Schedule I under
the heading "Existing New Revolving Credit Commitments", as such
amount may be changed from time to time pursuant to subsection 2.13
and the other applicable provisions hereof.
"Existing New Revolving Credit Commitment Percentage": as to
any New Revolving Credit Lender at any time, the percentage which
such New Revolving Credit Lender's Existing New Revolving Credit
Commitment then constitutes of the Aggregate Existing New Revolving
Credit Commitments.
"Extension of Credit": as to any Lender, the making of a Loan
by such Lender and, with respect to any Lender, the issuance of any
Letter of Credit.
"Financing Lease": (a) any lease of property, real or personal,
the obligations under which are capitalized on a consolidated balance
sheet of the Company and its Subsidiaries and (b) any other such
lease to the extent that the then present value of the minimum rental
commitment thereunder should, in accordance with GAAP, be capitalized
on a balance sheet of the lessee.
"Foreign Subsidiary": as to any Person, any Subsidiary of such
Person which is organized under the laws of any jurisdiction outside
of the country of the jurisdiction of organization of such Person.
"Foreign Subsidiary Borrower": as defined in the preamble
hereto.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Gel Cap Facility": the soft gelatin capsule manufacturing
facility located at Cartwright Loop Industrial Park, Church Street,
Bayport, New York.
"Global Health": as defined in the recitals hereto.
10
"Global Health Acquisition": the acquisition by the Company of
substantially all of the assets of Global Health pursuant to an asset
purchase agreement entered into among the Company and Global Health.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee and Collateral Agreement": the Amended and Restated
Guarantee and Collateral Agreement, attached hereto as Exhibit B,
executed and delivered by the Company and each of its Domestic
Subsidiaries, as the same may be amended, supplemented or otherwise
modified.
"Guarantee Obligation": as to any Person, any obligation of
such Person guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of such Person, whether or not contingent (a) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary
obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation
shall be deemed to be an amount equal to the value as of any date of
determination of the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made
(unless such Guarantee Obligation shall be expressly limited to a
lesser amount, in which case such lesser amount shall apply) or, if
not stated or determinable, the value as of any date of determination
of the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
"Hazardous Materials": any solid wastes, toxic or hazardous
substances, materials or wastes, defined, listed, classified or
regulated as such in or under any Environmental Laws, including,
without limitation, asbestos, petroleum or petroleum products
(including gasoline, crude oil or any fraction thereof),
polychlorinated biphenyls, and urea-formaldehyde insulation, and any
other substance the presence of which may give rise to liability
under any Environmental Law.
"Hedge Agreement": any interest rate protection agreement,
interest rate swap or other interest rate hedge arrangement, or
currency swap or other currency hedge arrangement (other than any
interest rate cap or other similar agreement or arrangement pursuant
to which the Company has no credit exposure), to or under which the
Company or any of its Subsidiaries is a party or a beneficiary.
11
"Hedge Agreement Obligations": all obligations of the Company
under any one or more Hedge Agreements to make payments to the
counterparties thereunder upon the occurrence of a termination event
or similar event thereunder.
"Holland & Barrett": Holland & Barrett Holdings Limited.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) indebtedness for borrowed
money or for the deferred purchase price of property or services in
respect of which such Person is liable as obligor (other than current
trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices), (b) indebtedness
secured by any Lien on any property or asset owned or held by such
Person regardless of whether the indebtedness secured thereby shall
have been assumed by or is a primary liability of such Person, (c)
obligations of such Person under Financing Leases, (d) the face
amount of all letters of credit issued for the account of or upon the
application of such Person and, without duplication, the unreimbursed
amount of all drafts drawn thereunder and (e) obligations (in the
nature of principal or interest) of such Person in respect of
acceptances or similar obligations issued or created for the account
of such Person.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan
is outstanding, (b) as to any Eurodollar Loan or Pounds Sterling Loan
having an Interest Period of three months or less, the last day of
such Interest Period and (c) as to any Eurodollar Loan or Pounds
Sterling Loan having an Interest Period longer than three months, (i)
each day which is three months after the first day of such Interest
Period and (ii) the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan or
Pounds Sterling Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loan or Pounds Sterling Loan and ending one, two,
three or six months thereafter, as selected by the relevant
Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such
Eurodollar Loan or Pounds Sterling Loan and ending one, two,
three or six months thereafter, as selected by the relevant
Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then
current Interest Period with respect thereto;
12
provided that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar
Loan or Pounds Sterling Loan would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on
the immediately preceding Business Day;
(ii) any Interest Period applicable to a Eurodollar Loan
or Pounds Sterling Loan that would otherwise extend beyond the
date final payment is due on such Loan shall end on such date
of final payment; and
(iii) any Interest Period pertaining to a Eurodollar Loan
or Pounds Sterling Loan that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a
calendar month.
"Issuing Lender": Chase or any of its Affiliates, in its
capacity as issuer of the Letters of Credit and any other Lender
which the Company, the Administrative Agent and the Majority Lenders
shall have approved, in its capacity as issuer of the Letters of
Credit.
"Judgment Currency": as defined in subsection 13.16(b).
"Lenders": as defined in the preamble hereto.
"Letter of Credit Applications": (a) in the case of Standby
Letters of Credit, a letter of credit application for a Standby
Letter of Credit on the standard form of the applicable Issuing
Lender for standby letters of credit, and (b) in the case of
Commercial Letters of Credit, a letter of credit application for a
Commercial Letter of Credit on the standard form of the applicable
Issuing Lender for commercial letters of credit.
"Letter of Credit Obligations": at any particular time, all
liabilities of the Company with respect to Letters of Credit, whether
or not any such liability is contingent, including (without
duplication) the sum of (a) the aggregate undrawn face amount of all
Letters of Credit then outstanding plus (b) the aggregate amount of
all unpaid Reimbursement Obligations.
"Letters of Credit": as defined in subsection 4.1(ii).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement (other than a bank or similar deposit account),
encumbrance, lien (statutory or other), or preference, priority or
other security agreement or similar preferential arrangement of any
kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any Financing
Lease having substantially the same economic
13
effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing).
"Loan Documents": the collective reference to this Agreement,
any Notes, the Security Documents and any documents or instruments
evidencing or governing the Security Documents.
"Loan Parties": the collective reference to the Company, the
Foreign Subsidiary Borrower and each guarantor or grantor party to
any Security Document.
"Loans": the collective reference to the New Revolving Credit
Loans, Revolving Credit Loans, the Term Loans, the Swing Line Loans
and the Pounds Sterling Loans.
"London Banking Day": any day on which banks in London are open
for general banking business, including dealings in foreign currency
and exchange.
"Majority Lenders": at any time, Lenders, the Total Loan
Percentages of which aggregate more than 50%.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise)
of the Company and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or
the Lenders hereunder or thereunder.
"Material Environmental Amount": $500,000.
"Material Foreign Subsidiary": any Foreign Subsidiary
accounting for 5% or more of the assets or revenues (computed for the
most recent fiscal year) of the Company and its consolidated
Subsidiaries, taken as a whole.
"Moody's": Moody's Investors Service, Inc. or any successor
thereto.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NatureSmart": as defined in the recitals hereto.
"NatureSmart Acquisition": the acquisition by the Company of
all of the membership interests in NatureSmart pursuant to a certain
purchase agreement to be entered into among the Company and Whole
Foods Market, Inc.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and
when received) of such Asset Sale or Recovery Event, net of
attorneys' fees,
14
accountants' fees, investment banking fees, amounts required to be
applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset that is the subject of such Asset
Sale or Recovery Event (other than any Lien pursuant to a Security
Document) and other customary fees and expenses actually incurred in
connection therewith and net of taxes paid or reasonably estimated to
be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements)
and (b) in connection with any issuance or sale of Capital Stock or
any incurrence of Indebtedness, the cash proceeds received from such
issuance or incurrence, net of attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and commissions and
other customary fees and expenses actually incurred in connection
therewith.
"New Loan Party": each Subsidiary of the Company that becomes a
Loan Party as of the Closing Date.
"New Revolving Credit Commitment": as to any New Revolving
Credit Lender at any time, its obligation to make New Revolving
Credit Loans to the Company in an aggregate amount not to exceed at
any time outstanding the sum of the U.S. Dollar amounts set forth
opposite such New Revolving Credit Lender's name in Schedule I under
the headings "Existing New Revolving Credit Commitments" and
"New Revolving Credit Commitment Increases", as such amount may
be changed from time to time pursuant to subsection 2.13 and the
other applicable provisions hereof.
"New Revolving Credit Commitment Increase": as to any New
Revolving Credit Lender at any time, its obligation to make New
Revolving Credit Loans to the Company in an aggregate amount not to
exceed at any time outstanding the U.S. Dollar amount set forth
opposite such New Revolving Credit Lender's name in Schedule I under
the heading "New Revolving Credit Commitment Increases", as such
amount may be changed from time to time pursuant to subsection 2.13
and the other applicable provisions hereof.
"New Revolving Credit Commitment Increase Percentage": as to
any New Revolving Credit Lender at any time, the percentage which
such New Revolving Credit Lender's New Revolving Credit Commitment
Increase then constitutes of the Aggregate New Revolving Credit
Commitment Increases.
"New Revolving Credit Commitment Percentage": as to any New
Revolving Credit Lender at any time, the percentage which such New
Revolving Credit Lender's New Revolving Credit Commitment then
constitutes of the Aggregate New Revolving Credit Commitments (or,
after the New Revolving Credit Conversion Date, or if the New
Revolving Credit Commitments have terminated, the percentage which
(a) the Aggregate New Revolving Credit Outstanding of such New
Revolving Credit Lender at such time then constitutes of (b) the
Aggregate New Revolving Credit Outstanding of all New Revolving
Credit Lenders at such time).
"New Revolving Credit Commitment Period": the period from and
including the Closing Date to but not including the New Revolving
Credit Conversion Date, or such
15
earlier date on which the New Revolving Credit Commitments shall
terminate as provided herein.
"New Revolving Credit Conversion Date": August 31, 2001.
"New Revolving Credit Lender": any Lender with a New Revolving
Credit Commitment hereunder or any New Revolving Credit Loans
outstanding; collectively, the "New Revolving Credit Lenders".
"New Revolving Credit Loan": as defined in subsection 2.10.
"New Revolving Credit Note": as defined in subsection 2.12(f).
"Non-Excluded Taxes": as defined in subsection 5.12(a).
"Notes": the collective reference to the New Revolving Credit
Notes, the Revolving Credit Notes, the Term Notes, the Swing Line
Notes and any note delivered pursuant to subsection 7.3(e).
"Nutrition Warehouse": Nutrition Warehouse, Inc.
"Nutrition Warehouse Acquisition": the acquisition by the
Company of Nutrition Warehouse and its Affiliates pursuant to a
certain stock purchase agreement to be entered into among Jeffrey
Schneider, Franca Schneider, Glenn Schneider, Darren Schneider,
Nutrition Warehouse Acquisition Corp. and the Company.
"Nutrition Warehouse Purchase Amount": the total amount
expended for the Nutrition Warehouse Acquisition to finance the cash
portion of the purchase price and the refinancing of the Indebtedness
of Nutrition Warehouse, its Affiliates and its Subsidiaries.
"Obligations": collectively, the unpaid principal of and
interest on the Loans, the Reimbursement Obligations and all other
obligations and liabilities of the Company and the Foreign Subsidiary
Borrower to the Administrative Agent, the Issuing Lender and the
Lenders under or in connection with this Agreement, the other Loan
Documents and any Hedge Agreement with any Lender (including in each
case, without limitation, interest accruing at the then applicable
rate provided in this Agreement or any other applicable Loan Document
or Hedge Agreement after the maturity of the Loans and interest
accruing at the then applicable rate provided in this Agreement or
any other applicable Loan Document or Hedge Agreement after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the
Company, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, the Notes, the Letters of Credit, the Letter of
Credit Applications, the other Loan Documents or any Hedge Agreement
with a Lender or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
16
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agents or to the
Lenders).
"Participants": as defined in subsection 13.6(b).
"Participating Interest": with respect to any Letter of Credit
(a) in the case of the Issuing Lender, its interest in such Letter of
Credit and any Letter of Credit Application relating thereto after
giving effect to the granting of any participating interests therein
pursuant hereto and (b) in the case of each Participating Lender, its
undivided participating interest in such Letter of Credit and any
Letter of Credit Application relating thereto.
"Participating Lender": any Lender (other than the Issuing
Lender) with respect to its Participating Interest in a Letter of
Credit.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor thereto.
"Person": an individual, partnership, corporation, business
trust, joint stock company, limited liability company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledged Stock": as defined in the Guarantee and Collateral
Agreement or any other Security Document.
"Pounds Sterling": pounds sterling in lawful currency of the
United Kingdom.
"Pounds Sterling Commitment": any Lender's obligation to make
Pounds Sterling Loans pursuant to subsection 3.1.
"Pounds Sterling Loans": as defined in subsection 3.1.
"Property": each parcel of real property owned or operated by
the Company and its Subsidiaries.
"Recovery Event": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation
proceeding relating to any asset of the Company or any of its
Subsidiaries.
"Register": as defined in subsection 13.6(d).
"Reimbursement Obligation": the obligation of the Company to
reimburse the Issuing Lender in accordance with the terms of this
Agreement and the related Letter of
17
Credit Application for any payment made by the Issuing Lender under
any Letter of Credit.
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the
Company or any of its Subsidiaries in connection therewith that are
not applied to prepay the Term Loans and, after the New Revolving
Credit Conversion Date, the New Revolving Credit Loans, pursuant to
subsection 5.4(e) as a result of the delivery of a Reinvestment
Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in
respect of which the Company has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer of the Company stating that no Event of Default
has occurred and is continuing and that the Company (directly or
indirectly through a Subsidiary) intends and expects to use all or a
specified portion of the Net Cash Proceeds of an Asset Sale or
Recovery Event to acquire assets useful in its business.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment
Prepayment Date to acquire assets useful in the Company's business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring six months
after such Reinvestment Event and (b) the date on which the Company
shall have determined not to, or shall have otherwise ceased to,
acquire assets useful in the Company's business with all or any
portion of the relevant Reinvestment Deferred Amount.
"Release": any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, escaping, leaking, dumping, disposing,
spreading, depositing or dispersing of any Hazardous Materials in,
unto or onto the environment.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under any of subsections .13, .14, .16, .18,
.19 or .20 of PBGC Reg. [SECTION] 4043 or any successor regulation
thereto.
"Requirement of Law": as to (a) any Person, the certificate of
incorporation and by-laws or the partnership or limited partnership
agreement or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of
an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property
or to which such Person or any of its property is subject, and (b)
any property, any law, treaty, rule, regulation,
18
requirement, judgment, decree or determination of any Governmental
Authority applicable to or binding upon such property or to which
such property is subject, including, without limitation, any
Environmental Laws.
"Responsible Officer": with respect to any Loan Party, the
chief executive officer, the president, the chief financial officer,
any vice president, the treasurer or the assistant treasurer of such
Loan Party.
"Restricted Payments": as defined in subsection 9.7.
"Revolving Credit Commitment": as to any Lender at any time,
its obligation to make Revolving Credit Loans and/or Pounds Sterling
Loans to, and/or participate in Letters of Credit issued for the
account of or Swing Line Loans to, the Company in an aggregate amount
not to exceed at any time outstanding the U.S. Dollar amount set
forth opposite such Lender's name in Schedule I under the heading
"Revolving Credit Commitment", as such amount may be changed from
time to time pursuant to subsection 2.4 and the other applicable
provisions hereof.
"Revolving Credit Commitment Percentage": as to any Lender at
any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the Aggregate Revolving Credit
Commitments (or, if the Revolving Credit Commitments have terminated
or expired, the percentage which (a) the Aggregate Revolving Credit
Outstanding of such Lender at such time then constitutes of (b) the
Aggregate Revolving Credit Outstanding of all Lenders at such time).
"Revolving Credit Commitment Period": the period from and
including the Closing Date to but not including the Revolving Credit
Termination Date, or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein.
"Revolving Credit Loan": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.3(e).
"Revolving Credit Termination Date": September 30, 2003.
"SDV Vitamins": SDV Vitamins, a mail order division of Rexall
Sundown, Inc.
"SDV Vitamins Acquisition": the acquisition by the Company of
substantially all of the assets of SDV Vitamins pursuant to an asset
purchase agreement entered into by the Company and Rexall Sundown,
Inc.
"Securities Act": the Securities Act of 1933, as amended.
"Security Documents": the collective reference to the Guarantee
and Collateral Agreement and the English Security Documents and each
other pledge agreement, security document or similar agreement that
may be delivered to the Administrative Agent as collateral security
for any or all of the Obligations, in each case as amended,
supplemented or otherwise modified from time to time.
19
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent": with respect to any Person on a particular date, the
condition that on such date, (a) the fair value of the property of
such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become
absolute and mature, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature, and (d) such
Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small amount of capital.
"Standby Letters of Credit": as defined in subsection 4.1(i).
"Subordinated Debt": $150,000,000 in aggregate principal amount
of 8.625% Senior Subordinated Notes of the Company due 2007.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise
controlled, directly or indirectly, through one or more
intermediaries, or both, by such Person (exclusive of any Affiliate
in which such Person has a minority ownership interest). Unless
otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Swing Line Commitment": the Swing Line Lender's obligation to
make Swing Line Loans pursuant to subsection 2.5.
"Swing Line Lender": Chase, in its capacity as lender of the
Swing Line Loans.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.
"Swing Line Loans": as defined in subsection 2.5(a).
"Swing Line Note": as defined in subsection 2.3(e).
"Term Loan": as defined in subsection 2.6.
"Term Loan Commitment": as to any Lender at any time, its
obligation to make Term Loans to the Company during the Term Loan
Commitment Period in an aggregate amount not to exceed at any time
outstanding the U.S. Dollar amount set forth opposite
20
such Lender's name in Schedule I to the Existing Credit Agreement
under the heading "Term Loan Commitment", as such amount may be
changed from time to time pursuant to subsection 2.9 and the other
applicable provisions hereof.
"Term Loan Commitment Percentage": as to any Lender at any
time, the percentage which such Lender's Term Loan Commitment then
constitutes of the Aggregate Term Loan Commitments (or, if the Term
Loan Commitments have terminated or expired, the percentage which
such Lender's aggregate principal amount of Term Loans outstanding
then constitutes of the aggregate principal amount of Term Loans
outstanding for all Lenders).
"Term Loan Commitment Period": the period from and including
April 16, 1999 to but not including the Term Loan Termination Date,
or such earlier date on which the Term Loan Commitments shall
terminate as provided herein.
"Term Loan Termination Date": April 16, 2000.
"Term Note": as defined in subsection 2.8(f).
"Total Loan Percentage": as to any Lender at any time, the
percentage which (i) the sum of (x) such Lender's Revolving Credit
Commitment (or, if the Revolving Credit Commitments have terminated
or expired, the Aggregate Revolving Credit Outstanding of such
Lender) plus (y) the sum of such Lender's Available Term Loan
Commitment and the aggregate principal amount of Term Loans
outstanding for such Lender plus (z) such Lender's New Revolving
Credit Commitment (or, after the New Revolving Credit Conversion
Date, or if the New Revolving Credit Commitments have terminated, the
Aggregate New Revolving Credit Outstanding of such Lender) then
constitutes of (ii) the sum of (x) the Aggregate Revolving Credit
Commitments (or, if the Revolving Credit Commitments have terminated
or expired, the Aggregate Revolving Credit Outstanding of all
Lenders) plus (y) the sum of the Aggregate Available Term Loan
Commitments and the aggregate principal amount of Term Loans
outstanding for all Lenders plus (z) the Aggregate New Revolving
Credit Commitments (or, after the New Revolving Credit Conversion
Date, or if the New Revolving Credit Commitments have terminated, the
Aggregate New Revolving Credit Outstanding of all Lenders).
"Tranche": the collective reference to Eurodollar Loans or
Pounds Sterling Loans the then current Interest Periods with respect
to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the
same day).
"Transferee": as defined in subsection 13.6(f).
"Type": as to any Loan, its nature as an ABR Loan, a Eurodollar
Loan or a Pounds Sterling Loan.
"UK GAAP": generally accepted accounting principles in the
United Kingdom in effect from time to time.
21
"UP-Front Fee": as defined in subsection 5.5(c).
"U.S. Dollar Equivalent": with respect to an amount denominated
in any currency other than U.S. Dollars, the equivalent in U.S.
Dollars of such amount, calculated on the basis of the arithmetical
mean of the buy and sell spot rates of exchange of the Administrative
Agent for such currency in the London market at 11:00 a.m. London
time, two Business Days prior to the date on which such amount is to
be determined.
1.2. Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes, the other Loan Documents or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any other Loan Document, and
any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms relating to the Company and its Subsidiaries not
defined in subsection 1.1 and accounting terms partly defined in subsection
1.1, to the extent not defined, shall have the respective meanings given to
them under GAAP provided that, if the Company notifies the Administrative
Agent that the Company requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Company that the Majority Lenders request
an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in
the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1. Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit
loans (each, a "Revolving Credit Loan") in U.S. Dollars to the Company from
time to time during the Revolving Credit Commitment Period so long as after
giving effect thereto (i) the Available Revolving Credit Commitment of each
Lender is greater than or equal to zero and (ii) the Aggregate Revolving
Credit Outstanding of all Lenders does not exceed the Aggregate Revolving
Credit Commitments. During the Revolving Credit Commitment Period the
Company may use the Revolving Credit Commitments by borrowing, prepaying
the Revolving Credit Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof.
22
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as
determined by the Company and notified to the Administrative Agent in
accordance with subsections 2.2 and 5.2, provided that no Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one month
prior to the Revolving Credit Termination Date.
2.2. Procedure for Revolving Credit Borrowing. The Company may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Company shall give
the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 11:00 A.M. (New York time) at least
(a) three Business Days prior to the requested Borrowing Date, if all or
any part of the requested Revolving Credit Loans are to be initially
Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing
Date, otherwise), specifying in each case (i) the amount to be borrowed,
(ii) the requested Borrowing Date, (iii) whether the borrowing is to be of
Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amount of
such Type of Loan and the length of the initial Interest Periods therefor.
Each borrowing under the Revolving Credit Commitments shall be in an amount
equal to (A) in the case of ABR Loans, $1,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the then Aggregate Available Revolving
Credit Commitments are less than $1,000,000, such lesser amount) and (B) in
the case of Eurodollar Loans, $5,000,000 or a whole multiple of $5,000,000
in excess thereof. Upon receipt of any such notice from the Company, the
Administrative Agent shall promptly notify each Lender thereof not later
than 9:00 A.M., New York City time, on the requested Borrowing Date. Not
later than 12:00 Noon, New York City time, on each requested Borrowing Date
each Lender shall make an amount equal to its Revolving Credit Commitment
Percentage of the principal amount of the Revolving Credit Loans requested
to be made on such Borrowing Date available to the Administrative Agent at
its office specified in subsection 13.2 in U.S. Dollars and in immediately
available funds. The Administrative Agent shall on such date credit the
account of the Company on the books of such office with the aggregate of
the amounts made available to the Administrative Agent by the Lenders and
in like funds as received by the Administrative Agent.
2.3. Repayment of Revolving Credit Loans; Evidence of Debt. (a) The
Company hereby unconditionally promises to pay to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Credit Loan of such Lender (whether made before or after the
termination or expiration of the Revolving Credit Commitments) on the
Revolving Credit Termination Date and on such other dates and in such other
amounts as may be required from time to time pursuant to this Agreement.
The Company hereby further agrees to pay interest on the unpaid principal
amount of the Revolving Credit Loans from time to time outstanding until
payment thereof in full at the rates per annum, and on the dates, set forth
in subsection 5.1.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Company to such
Lender resulting from each Revolving Credit Loan of such Lender from time
to time, including the amounts of principal and interest payable thereon
and paid to such Lender from time to time under this Agreement.
23
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 13.6(d), and a subaccount therein for each Lender, in which
shall be recorded (i) the amount of each Revolving Credit Loan made
hereunder, the Type thereof and each Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become
due and payable from the Company to each Lender hereunder in respect of the
Revolving Credit Loans and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Company in respect of the Revolving
Credit Loans and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.3(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register
or any such account, or any error therein, shall not in any manner affect
the obligation of the Company to repay (with applicable interest) the
Revolving Credit Loans made to the Company by such Lender in accordance
with the terms of this Agreement.
(e) The Company agrees that it will, upon the request of any Lender,
execute and deliver to each Lender (i) a promissory note of the Company
evidencing the Revolving Credit Loans of such Lender, substantially in the
form of Exhibit A-1 with appropriate insertions as to date and principal
amount (each, a "Revolving Credit Note") and/or (ii) a promissory note of
the Company evidencing the Swing Line Loans of such Lender, substantially
in the form of Exhibit A-2 with appropriate insertions as to date and
principal amount (each, a "Swing Line Note"); provided, that any Revolving
Credit Note or Swing Line Note previously delivered to such Lender (or
predecessor thereof) has been returned to the Company and marked canceled.
2.4. Termination or Reduction of Revolving Credit Commitments. The
Company shall have the right, upon not less than five Business Days' notice
to the Administrative Agent (which shall promptly notify each Lender
thereof), to terminate the Revolving Credit Commitments or, from time to
time, to reduce the amount of the Revolving Credit Commitments; provided
that no such termination or reduction shall be permitted if, after giving
effect thereto and to any prepayments of the Revolving Credit Loans made on
the effective date thereof, the Available Revolving Credit Commitment of
any Lender would not be greater than or equal to zero. Any such reduction
shall be in an amount equal to $1,000,000 or a whole multiple of $1,000,000
in excess thereof and shall reduce permanently the Revolving Credit
Commitments then in effect.
2.5. Swing Line Commitment. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans
(individually, a "Swing Line Loan"; collectively, the "Swing Line Loans")
to the Company from time to time during the Revolving Credit Commitment
Period in an aggregate principal amount at any one time outstanding not to
exceed $5,000,000; provided that the Swing Line Lender shall not make any
Swing Line Loan if, after giving effect thereto, the sum of the Swing Line
Loans, the Revolving Credit Loans, the Pounds Sterling Loans and the Letter
of Credit Obligations (in each case after giving effect to the Loans
requested to be made and the Letters of Credit requested to be issued on
such date) exceed the Revolving Credit Commitments. During the Revolving
Credit Commitment Period, the Company may use the Swing Line Commitment by
borrowing, prepaying the Swing Line Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. All
24
Swing Line Loans shall be made as ABR Loans and shall not be entitled to be
converted into Eurodollar Loans. The Company shall give the Swing Line
Lender irrevocable notice (which notice must be received by the Swing Line
Lender prior to 12:00 Noon, New York City time) on the requested Borrowing
Date specifying the amount of the requested Swing Line Loan which shall be
in a minimum amount of $100,000 or a whole multiple of $100,000 in excess
thereof. The proceeds of the Swing Line Loan will be made available by the
Swing Line Lender to the Company at the office of the Swing Line Lender by
3:00 p.m. on the Borrowing Date by crediting the account of the Company at
such office with such proceeds. The Company may at any time and from time
to time prepay the Swing Line Loans, in whole or in part, without premium
or penalty, by notifying the Swing Line Lender prior to 12:00 Noon on any
Business Day of the date and amount of prepayment. If any such notice is
given, the amount specified in such notice shall be due and payable on the
date specified therein. Partial prepayments shall be in an aggregate
principal amount of $100,000 or a whole multiple of $100,000 in excess
thereof.
(b) The Swing Line Lender, at any time in its sole and absolute
discretion, may, on behalf of the Company (which hereby irrevocably directs
the Swing Line Lender to act on its behalf) request each Lender, including
the Swing Line Lender, to make a Revolving Credit Loan which is an ABR Loan
in an amount equal to such Lender's Revolving Credit Commitment Percentage
of the amount of the Swing Line Loans outstanding on the date such notice
is given (the "Refunded Swing Line Loans"). Unless any of the events
described in paragraph (h) of Section 11 shall have occurred with respect
to the Company (in which event the procedures of paragraph (d) of this
subsection 2.5 shall apply) each Lender shall make the proceeds of its
Revolving Credit Loan available to the Administrative Agent for the account
of the Swing Line Lender at the office of the Administrative Agent
specified in subsection 13.2 prior to 12:00 Noon (New York City time) in
funds immediately available on the Business Day next succeeding the date
such notice is given. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the Refunded Swing Line Loans. Effective on
the day such Revolving Credit Loans are made, the portion of the Swing Line
Loans so paid shall no longer be outstanding as Swing Line Loans, shall no
longer be due under any Swing Line Note and shall be due under the
respective Revolving Credit Loans made by the Lenders in accordance with
their respective Revolving Credit Commitment Percentages.
(c) Notwithstanding anything herein to the contrary, the Swing Line
Lender shall not be obligated to make any Swing Line Loans if the
conditions set forth in subsection 7.2 have not been satisfied.
(d) If prior to the making of a Revolving Credit Loan pursuant to
paragraph (b) of this subsection 2.5 one of the events described in
paragraph (h) of Section 11 shall have occurred and be continuing with
respect to the Company, each Lender will, on the date such Revolving Credit
Loan was to have been made pursuant to the notice in subsection 2.5,
purchase an undivided participating interest in the Refunded Swing Line
Loans in an amount equal to (i) its Revolving Credit Commitment Percentage
times (ii) the Refunded Swing Line Loans. Each Lender will immediately
transfer to the Swing Line Lender, in immediately available funds, the
amount of its participation, and upon receipt thereof the Swing Line Lender
will deliver to such Lender a Swing Line Loan Participation Certificate
dated the date of receipt of such funds and in such amount.
25
(e) Whenever, at any time after any Lender has purchased a
participating interest in a Swing Line Loan, the Swing Line Lender receives
any payment on account thereof, the Swing Line Lender will distribute to
such Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender's participating interest was outstanding and
funded); provided, however, that in the event that such payment received by
the Swing Line Lender is required to be returned, such Lender will return
to the Swing Line Lender any portion thereof previously distributed by the
Swing Line Lender to it.
(f) Each Lender's obligation to make the Loans referred to in
subsection 2.5(b) and to purchase participating interests pursuant to
subsection 2.5(d) shall be absolute, irrevocable and unconditional and
shall not be affected by any circumstance, including, without limitation,
(i) any set-off, counterclaim, recoupment, defense or other right which
such Lender or the Company may have against the Swing Line Lender, the
Company or any other Person for any reason whatsoever, (ii) the occurrence
or continuance of a Default or an Event of Default; (iii) any adverse
change in the condition (financial or otherwise) of the Company or any
other Loan Party; (iv) any breach of this Agreement or any other Loan
Document by the Company or any of its Subsidiaries or any other Lender; or
(v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
2.6. Term Loan Commitments. On and as of the date hereof, each
Lender has made term loans to the Company (each, a "Term Loan") from time
to time during the Term Loan Commitment Period in an aggregate principal
amount set forth opposite such Lender's name on Schedule I under the
heading "Term Loans". The Term Loans may from time to time be (a)
Eurodollar Loans, (b) ABR Loans or (c) a combination thereof, as determined
by the Company and notified to the Administrative Agent in accordance with
subsections 2.9 and 5.2.
2.7. Procedure for Term Loan Borrowing. The Company may borrow
under the Term Loan Commitments during the Term Loan Commitment Period on
any Business Day, provided that the Company shall give the Administrative
Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M. (New York City time) at least (a)
three Business Days prior to the requested Borrowing Date, if all or any
part of the requested Term Loans are to be initially Eurodollar Loans or
(b) one Business Day prior to the requested Borrowing Date, otherwise),
specifying in each case (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans,
ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and
the length of the initial Interest Periods therefor. Each borrowing under
the Term Loan Commitments shall be in an amount equal to (A) in the case of
ABR Loans, $1,000,000 or a whole multiple of $1,000,000 in excess thereof
(or, if the then Aggregate Available Term Loan Commitments are less than
$1,000,000, such lesser amount) and (B) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $5,000,000 in excess thereof. Upon
receipt of any such notice from the Company, the Administrative Agent shall
promptly notify each Lender thereof not later than 9:00 A.M., New York City
time, on the requested Borrowing Date. Not later than 12:00 Noon, New York
City time, on each requested Borrowing Date, each Lender shall make an
amount equal to its Term Loan Commitment Percentage of the principal amount
of the Term Loans requested to be made on such Borrowing Date available to
the Administrative Agent at its office specified in subsection 13.2 in U.S.
26
Dollars and in immediately available funds. The Administrative Agent shall
on such date credit the account of the Company on the books of such office
with the aggregate of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by the Administrative
Agent.
2.8. Repayment of Term Loans; Evidence of Debt.
(a) The aggregate Term Loans of all the Lenders outstanding on the
Term Loan Termination Date shall be payable in 20 equal consecutive
quarterly installments on the dates set forth below in a principal amount
equal to the percentage set forth opposite such date multiplied by the
aggregate amount of the Term Loans outstanding on the Term Loan Termination
Date (or, if less, the aggregate amount of the Term Loans then
outstanding):
Dates Percentage
----- ----------
<s> <c>
June 30, 2000 5.0%
September 30, 2000 5.0%
December 31, 2000 5.0%
March 31, 2001 5.0%
June 30, 2001 5.0%
September 30, 2001 5.0%
December 31, 2001 5.0%
March 31, 2002 5.0%
June 30, 2002 5.0%
September 30, 2002 5.0%
December 31, 2002 5.0%
March 31, 2003 5.0%
June 30, 2003 5.0%
September 30, 2003 5.0%
December 31, 2003 5.0%
March 31, 2004 5.0%
June 30, 2004 5.0%
September 30, 2004 5.0%
December 31, 2004 5.0%
March 31, 2005 5.0%
(b) The Company hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the amounts specified
in subsection 2.8(a) (or if less, the aggregate amount of the Term Loans
then outstanding) on the dates specified in subsection 2.8(a) and on such
other dates and in such other amounts as may be required from time to time
pursuant to this Agreement. The Company hereby further agrees to pay
interest on the unpaid principal amount of the Term Loans from time to time
outstanding until payment thereof in full at the rates per annum, and on
the dates, set forth in subsection 5.1.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Company to such
Lender resulting from each Term
27
Loan of such Lender from time to time, including the amounts of principal
and interest payable thereon and paid to such Lender from time to time
under this Agreement.
(d) The Administrative Agent shall maintain the Register pursuant to
subsection 13.6(d), and a subaccount therein for each Lender, in which
shall be recorded (i) the amount of each Term Loan made hereunder, the Type
thereof and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder in respect of the Term Loans and (iii)
both the amount of any sum received by the Administrative Agent hereunder
from the Company in respect of the Term Loans and each Lender's share
thereof.
(e) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.8(c) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register
or any such account, or any error therein, shall not in any manner affect
the obligation of the Company to repay (with applicable interest) the Term
Loans made to the Company by such Lender in accordance with the terms of
this Agreement.
(f) The Company agrees that it will, upon the request of any Lender,
execute and deliver to each Lender a promissory note of the Company
evidencing the Term Loans of such Lender, substantially in the form of
Exhibit A-3 with appropriate insertions as to date and principal amount
(each, a "Term Note"); provided, that any Term Note previously delivered to
such Lender (or any predecessor thereof) has been returned to the Company
and marked cancelled.
2.9. Termination or Reduction of Term Loan Commitments. The Company
shall have the right, upon not less than five Business Days' notice to the
Administrative Agent (which shall promptly notify each Lender thereof), to
terminate the Term Loan Commitments or, from time to time, to reduce the
amount of the Term Loan Commitments. Any such reduction shall be in an
amount equal to $1,000,000 or a whole multiple of $1,000,000 in excess
thereof and shall reduce permanently the Term Loan Commitments then in
effect.
2.10. New Revolving Credit Commitments. (a) Subject to the terms
and conditions hereof, each New Revolving Credit Lender severally agrees to
make revolving credit loans (each, a "New Revolving Credit Loan") in U.S.
Dollars to the Company from time to time during the New Revolving Credit
Commitment Period so long as after giving effect thereto (i) the Available
New Revolving Credit Commitment of each New Revolving Credit Lender is
greater than or equal to zero and (ii) the Aggregate New Revolving Credit
Outstanding of all New Revolving Credit Lenders does not exceed the
Aggregate New Revolving Credit Commitments. During the New Revolving Credit
Commitment Period, the Company may use the New Revolving Credit Commitments
by borrowing, prepaying the New Revolving Credit Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
(b) During the New Revolving Credit Commitment Period, the Company
shall fully borrow under the Existing New Revolving Credit Commitments
prior to making any
28
borrowing under the New Revolving Credit Commitment Increases. On the New
Revolving Credit Conversion Date, any Interest Period then applicable to
the New Revolving Credit Loans then outstanding shall be terminated and
such New Revolving Credit Loans shall be continued with new Interest
Periods commencing on such date so that all New Revolving Credit Lenders
will be ratable as to each Interest Period based upon their pro rata share
of New Revolving Credit Loans then outstanding on such date. Such
continuation shall be subject to the provisions of subsection 5.11.
(c) The New Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as
determined by the Company and notified to the Administrative Agent in
accordance with subsections 2.11 and 5.2.
2.11. Procedure for New Revolving Credit Borrowing. The Company may
borrow under the New Revolving Credit Commitments during the New Revolving
Credit Commitment Period on any Business Day, provided that the Company
shall give the Administrative Agent irrevocable notice (which notice must
be received by the Administrative Agent prior to 11:00 A.M. (New York time)
at least (a) three Business Days prior to the requested Borrowing Date, if
all or any part of the requested New Revolving Credit Loans are to be
initially Eurodollar Loans, or (b) one Business Day prior to the requested
Borrowing Date, otherwise), specifying in each case (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is
to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if
the borrowing is to be entirely or partly of Eurodollar Loans, the amount
of such Type of Loan and the length of the initial Interest Periods
therefor. Each borrowing under the New Revolving Credit Commitments shall
be in an amount equal to (A) in the case of ABR Loans, $1,000,000 or a
whole multiple of $1,000,000 in excess thereof (or, if the then Aggregate
Available New Revolving Credit Commitments are less than $1,000,000, such
lesser amount) and (B) in the case of Eurodollar Loans, $5,000,000 or a
whole multiple of $5,000,000 in excess thereof. Upon receipt of any such
notice from the Company, the Administrative Agent shall promptly notify
each New Revolving Credit Lender thereof not later than 9:00 A.M., New York
City time, on the requested Borrowing Date. Not later than 12:00 Noon, New
York City time, on each requested Borrowing Date each New Revolving Credit
Lender shall make an amount equal to its Existing New Revolving Credit
Commitment Percentage and/or its New Revolving Credit Commitment Increase
Percentage, as the case may be, of the principal amount of the relevant New
Revolving Credit Loans requested to be made on such Borrowing Date
available to the Administrative Agent at its office specified in subsection
13.2 in U.S. Dollars and in immediately available funds. The Administrative
Agent shall on such date credit the account of the Company on the books of
such office with the aggregate of the amounts made available to the
Administrative Agent by the New Revolving Credit Lenders and in like funds
as received by the Administrative Agent.
2.12. Repayment of New Revolving Credit Loans; Evidence of Debt.
(a) The aggregate New Revolving Credit Loans of all the New Revolving
Credit Lenders outstanding on the New Revolving Credit Conversion Date
shall be payable in 16 consecutive quarterly installments on the dates set
forth below in a principal amount equal to the percentage set forth
opposite such date multiplied by the aggregate amount of the New Revolving
Credit Loans outstanding on the New Revolving Credit Conversion Date (or,
if less,
29
in a principal amount equal to the aggregate amount of the New Revolving
Credit Loans then outstanding):
Dates Percentage
----- ----------
<s> <c>
September 30, 2001 6.25%
December 31, 2001 6.25%
March 31, 2002 6.25%
June 30, 2002 6.25%
September 30, 2002 6.25%
December 31, 2002 6.25%
March 31, 2003 6.25%
June 30, 2003 6.25%
September 30, 2003 6.25%
December 31, 2003 6.25%
March 31, 2004 6.25%
June 30, 2004 6.25%
September 30, 2004 6.25%
December 31, 2004 6.25%
March 31, 2005 6.25%
June 30, 2005 6.25%
(b) The Company hereby unconditionally promises to pay to the
Administrative Agent for the account of each New Revolving Credit Lender
the amounts specified in subsection 2.12(a) (or if less, the aggregate
amount of the New Revolving Credit Loans then outstanding) on the dates
specified in subsection 2.12(a) and on such other dates and in such other
amounts as may be required from time to time pursuant to this Agreement.
The Company hereby further agrees to pay interest on the unpaid principal
amount of the New Revolving Credit Loans from time to time outstanding
until payment thereof in full at the rates per annum, and on the dates, set
forth in subsection 5.1.
(c) Each New Revolving Credit Lender shall maintain in accordance
with its usual practice an account or accounts evidencing indebtedness of
the Company to such New Revolving Credit Lender resulting from each New
Revolving Credit Loan of such New Revolving Credit Lender from time to
time, including the amounts of principal and interest payable thereon and
paid to such New Revolving Credit Lender from time to time under this
Agreement.
(d) The Administrative Agent shall maintain the Register pursuant to
subsection 13.6(d), and a subaccount therein for each New Revolving Credit
Lender, in which shall be recorded (i) the amount of each New Revolving
Credit Loan made hereunder, the Type thereof, whether such New Revolving
Credit Loan is made under the Existing New Revolving Credit Commitments or
under the New Revolving Credit Commitment Increases, and each Interest
Period applicable thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Company to each New
Revolving Credit Lender hereunder in respect of the New Revolving Credit
Loans and (iii) both the amount of any sum received by the
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Administrative Agent hereunder from the Company in respect of the New
Revolving Credit Loans and each New Revolving Credit Lender's share
thereof.
(e) The entries made in the Register and the accounts of each New
Revolving Credit Lender maintained pursuant to subsection 2.12(c) shall, to
the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Company therein recorded;
provided, however, that the failure of any New Revolving Credit Lender or
the Administrative Agent to maintain the Register or any such account, or
any error therein, shall not in any manner affect the obligation of the
Company to repay (with applicable interest) the New Revolving Credit Loans
made to the Company by such New Revolving Credit Lender in accordance with
the terms of this Agreement.
(f) The Company agrees that it will execute and deliver (i) to each
New Revolving Credit Lender that has a New Revolving Credit Commitment
Increase and (ii) to each remaining New Revolving Credit Lender that so
requests a promissory note of the Company evidencing the New Revolving
Credit Loans of such New Revolving Credit Lender, substantially in the form
of Exhibit A-4 with appropriate insertions as to date and principal amount
(each, a "New Revolving Credit Note"); provided, that the delivery of such
New Revolving Credit Notes shall not be a condition precedent to the
Closing Date.
2.13. Termination or Reduction of New Revolving Credit Commitments.
The Company shall have the right, upon not less than five Business Days'
notice to the Administrative Agent (which shall promptly notify each New
Revolving Credit Lender thereof), to terminate the New Revolving Credit
Commitments or, from time to time, to reduce the amount of the New
Revolving Credit Commitments; provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the New Revolving Credit Loans made on the effective date
thereof, the Available New Revolving Credit Commitment of any New Revolving
Credit Lender would not be greater than or equal to zero. Any such
reduction shall be in an amount equal to $1,000,000 or a whole multiple of
$1,000,000 in excess thereof and shall reduce permanently the New Revolving
Credit Commitments then in effect. No such reduction shall be made in the
Existing Revolving Credit Commitments while any New Revolving Credit
Commitment Increases are in effect.
SECTION 3. AMOUNT AND TERMS OF POUNDS STERLING COMMITMENT
3.1. Pounds Sterling Commitments. Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit
loans (each, a "Pounds Sterling Loan") in Pounds Sterling to the Company or
the Foreign Subsidiary Borrower from time to time during the Revolving
Credit Commitment Period so long as after giving effect thereto (a) the
Available Revolving Credit Commitment of each Lender is greater than or
equal to zero, (b) the Aggregate Revolving Credit Outstanding of all
Lenders does not exceed the Aggregate Revolving Credit Commitments and (c)
the aggregate principal amount of all Pounds Sterling Loans shall not
exceed Pound Sterling equivalent of $10,000,000. During the Revolving
Credit Commitment Period, the Company or the Foreign Subsidiary Borrower
may use the Revolving Credit Commitments by borrowing, repaying the Pounds
Sterling Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof. For the purpose of determining the
Aggregate Revolving Credit Outstanding on the date of a requested Pounds
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Sterling Loan, the U.S. Dollar Equivalent of the Pounds Sterling Loan then
being requested shall be aggregated with the U.S. Dollar Equivalents of all
Pounds Sterling Loans then outstanding (the U.S. Dollar Equivalent of each
such outstanding Pounds Sterling Loan to be calculated as of the date of
the most recent continuation of such Pounds Sterling Loan pursuant to
subsection 3.2(d) or, if not previously continued, the date of the initial
Pounds Sterling Loan).
3.2. Making the Pounds Sterling Loans. (a) Each Pounds Sterling
Loan shall be made on notice, given by the Company to the Administrative
Agent not later than 11:00 A.M. (London time) on the third Business Day
prior to the date of the proposed Pounds Sterling Loan. Each such notice
shall specify therein (i) the name of the Borrower, (ii) the date of such
proposed Pounds Sterling Loan, (iii) the aggregate amount of such proposed
Pounds Sterling Loan and (iv) the initial Interest Period for such Pounds
Sterling Loan.
(b) The Administrative Agent shall give to each Lender prompt notice
of the Administrative Agent's receipt of the notice referred to in
subsection 3.2(a) not later than 9:00 A.M., New York City time, on the
requested Borrowing Date. Each Lender shall, before 11:00 A.M. (London
time) on the date of the proposed Pounds Sterling Loan, make available to
the account of the Administrative Agent's office located at Trinity Tower,
9 Thomas Moore Street, London, England E1 9YT, in immediately available
funds, such Lender's Revolving Credit Commitment Percentage of such
proposed Pounds Sterling Loan in Pounds Sterling. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Section 7, the Administrative Agent will make such
funds available to the applicable Borrower at the Administrative Agent's
aforesaid addresses.
(c) Each Pounds Sterling Loan shall be in an amount in Pounds
Sterling of which the U.S. Dollar Equivalent is equal to at least
$1,000,000 (or, if the then Aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount).
(d) At least three Business Days' prior to the end of each Interest
Period, the Company shall give the Administrative Agent notice (a "Notice
of Continuation"), not later than 11:00 A.M. (New York time) specifying the
duration of the next succeeding Interest Period. The Administrative Agent
shall promptly notify each Lender of its receipt of a Notice of
Continuation and the contents thereof. If, within the time period required
under the terms of this subsection 3.2(d), the Administrative Agent does
not receive a Notice of Continuation from the Company, then, upon the
expiration of the Interest Period therefor, the applicable Interest Period
in respect of such Pounds Sterling Loans shall be automatically deemed to
be a period of one month commencing on the last day of the immediately
preceding Interest Period and ending one month thereafter. Notwithstanding
the first sentence of this subsection 3.2(d), no Pounds Sterling Loans
shall be continued in accordance with a Notice of Continuation given if, on
the date of the Notice of Continuation, the Borrowers are not in compliance
with subsection 3.1, unless, one or more of the Borrowers shall repay the
Pounds Sterling Loans, together with all accrued interest on the amount
prepaid, such that the Borrowers are in compliance with subsection 3.1.
Notwithstanding the foregoing, upon the expiration of any Interest Period
with respect to any Pounds Sterling Loan at any time at which a Default or
Event of Default shall have occurred and be continuing, the applicable
Interest Period in respect of such Pounds Sterling Loans shall be
automatically deemed to be a period of one month commencing on the
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last day of the immediately preceding Interest Period and ending one month
thereafter. Each Notice of Continuation shall be irrevocable.
3.3. Repayment of Pounds Sterling Loans; Evidence of Debt. (a) The
Company and the Foreign Subsidiary Borrower hereby jointly and severally
unconditionally promise to pay to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Pounds Sterling
Loan of such Lender to the Company or the Foreign Subsidiary Borrower on
the Revolving Credit Termination Date and on such other date(s) and in such
other amounts as may be required from time to time pursuant to this
Agreement. Each of the Company and the Foreign Subsidiary Borrower hereby
further agrees to pay interest on the unpaid principal amount of the Pounds
Sterling Loans advanced to it and from time to time outstanding until
payment thereof in full at the rates per annum, and on the dates, set forth
in subsection 5.1.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Company and the
Foreign Subsidiary Borrower to such Lender resulting from each Pounds
Sterling Loan of such Lender from time to time, including the amounts of
principal and interest payable thereon and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 13.6(d), and a subaccount therein for each Lender, in which
shall be recorded (i) the amount of each Pounds Sterling Loan made
hereunder, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Company and the Foreign Subsidiary
Borrower to each Lender hereunder in respect of the Pounds Sterling Loans
and (iii) both the amount of any sum received by the Administrative Agent
hereunder from the Company and the Foreign Subsidiary Borrower in respect
of the Pounds Sterling Loans and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 3.3(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company and the Foreign Subsidiary Borrower therein
recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account, or any
error therein, shall not in any manner affect the obligation of the Company
or the Foreign Subsidiary Borrower to repay (with applicable interest) the
Pounds Sterling Loans made to the Company or the Foreign Subsidiary
Borrower by such Lender in accordance with the terms of this Agreement.
SECTION 4. LETTERS OF CREDIT
4.1. Letters of Credit. Subject to the terms and conditions of this
Agreement, the Issuing Lender agrees, on behalf of the Lenders, and in
reliance on the agreement of the Lenders set forth in subsection 4.3, to
continue outstanding or to issue for the account of the Company letters of
credit in an aggregate face amount, together with any unpaid Reimbursement
Obligations, not to exceed $5,000,000 at any time outstanding, as follows:
(i) standby letters of credit (collectively, the "Standby
Letters of Credit") in a form reasonably satisfactory to the Issuing
Lender and in favor of such beneficiaries as
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the Company shall specify from time to time (which shall be
reasonably satisfactory to the Issuing Lender); and
(ii) commercial letters of credit in the form of the Issuing
Lender's standard commercial letters of credit ("Commercial Letters
of Credit") in favor of sellers of goods or services to the Company
or its Subsidiaries (the Standby Letters of Credit and Commercial
Letters of Credit being referred to collectively as the "Letters of
Credit");
provided that on the date of the issuance of any Letter of Credit, and
after giving effect to such issuance, the Aggregate Revolving Credit
Outstanding of all Lenders does not exceed the Aggregate Revolving Credit
Commitments at such time. Each Standby Letter of Credit shall (i) have an
expiry date no later than one year from the date of issuance thereof or, if
earlier, five Business Days prior to the Revolving Credit Termination Date,
(ii) be denominated in U.S. Dollars and (iii) be in a minimum face amount
of $100,000. Each Commercial Letter of Credit shall (i) provide for the
payment of sight drafts when presented for honor thereunder, or of time
drafts, in each case in accordance with the terms thereof and when
accompanied by the documents described or when such documents are
presented, as the case may be, (ii) be denominated in U.S. Dollars and
(iii) have an expiry date no later than six months from the date of
issuance thereof or, if earlier, five Business Days prior to the Revolving
Credit Termination Date. Upon the issuance of any Letter of Credit, the
Administrative Agent shall promptly notify each Lender thereof.
4.2. Procedure for Issuance of Letters of Credit. The Company may
from time to time request, upon at least three Business Days' notice, the
Issuing Lender to issue a Letter of Credit by delivering to the Issuing
Lender at its address specified in subsection 13.2 a Letter of Credit
Application, completed to the satisfaction of such Issuing Lender, together
with such other certificates, documents and other papers and information as
such Issuing Lender may reasonably request. Upon receipt of any Letter of
Credit Application, the Issuing Lender will process such Letter of Credit
Application, and the other certificates, documents and other papers
delivered in connection therewith, in accordance with its customary
procedures and shall promptly issue such Letter of Credit (but in no event
earlier than three Business Days after receipt by the Issuing Lender of the
Letter of Credit Application relating thereto) by issuing the original of
such Letter of Credit to the beneficiary thereof and by furnishing a copy
thereof to the Company. Prior to the issuance of any Letter of Credit, the
Issuing Lender will confirm with the Administrative Agent that the issuance
of such Letter of Credit is permitted pursuant to Section 4 and subsection
7.2. Additionally, the Issuing Lender and the Company shall inform the
Administrative Agent of any modifications made to outstanding Letters of
Credit, of any payments made with respect to such Letters of Credit, and of
any other information regarding such Letters of Credit as may be reasonably
requested by the Administrative Agent, in each case pursuant to procedures
established by the Administrative Agent.
4.3. Participating Interests. Effective as of the date hereof (in
the case of outstanding Letters of Credit on such date) or the date of the
issuance of each Letter of Credit (in the case of a Letter of Credit issued
after the date hereof, the Issuing Lender agrees to allot, and does allot,
to each other Lender, and each such Lender severally and irrevocably agrees
to take and does take, a Participating Interest in such Letter of Credit
and the related Letter of Credit Application in a percentage equal to such
Lender's Revolving Credit Commitment Percentage.
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On the date that any Participating Lender becomes a party to this Agreement
in accordance with subsection 13.6, Participating Interests in any
outstanding Letter of Credit held by the Lender from which such
Participating Lender acquired its interest hereunder shall be
proportionately reallotted between such Participating Lender and such
transferor Lender. Each Participating Lender hereby agrees that its
obligation to participate in each Letter of Credit issued in accordance
with the terms hereof and to pay or to reimburse the Issuing Lender in
respect of such Letter of Credit for its participating share of the drafts
drawn thereunder shall be irrevocable and unconditional; provided that no
Participating Lender shall be liable for the payment of any amount under
subsection 4.4(b) resulting solely from the Issuing Lender's gross
negligence or willful misconduct.
4.4. Payments. (a) The Company agrees (i) to reimburse the
Administrative Agent for the account of the Issuing Lender, forthwith upon
its demand and otherwise in accordance with the terms of the Letter of
Credit Application, if any, relating thereto, for any payment made by the
Issuing Lender under any Letter of Credit and (ii) to pay to the
Administrative Agent for the account of such Issuing Lender, interest on
any unreimbursed portion of any such payment from the date of such payment
until reimbursement in full thereof at a fluctuating rate per annum equal
to the rate then borne by Revolving Credit Loans that are ABR Loans
pursuant to subsection 5.1(b) plus 2%.
(b) In the event that the Issuing Lender makes a payment under any
Letter of Credit and is not reimbursed in full therefor, forthwith upon
demand of the Issuing Lender, and otherwise in accordance with the terms
hereof or of the Letter of Credit Application, if any, relating to such
Letter of Credit, the Issuing Lender will promptly through the
Administrative Agent notify each Participating Lender that acquired its
Participating Interest in such Letter of Credit from the Issuing Lender or
pursuant to an assignment as provided in subsection 13.6(c). No later than
the close of business on the date such notice is given, each such
Participating Lender will transfer to the Administrative Agent, for the
account of the Issuing Lender, in immediately available funds, an amount
equal to such Participating Lender's pro rata share of the unreimbursed
portion of such payment.
(c) Whenever, at any time, after the Issuing Lender has made payment
under a Letter of Credit and has received from any Participating Lender
such Participating Lender's pro rata share of the unreimbursed portion of
such payment, the Issuing Lender receives any reimbursement on account of
such unreimbursed portion or any payment of interest on account thereof,
the Issuing Lender will distribute to the Administrative Agent, for the
account of such Participating Lender, its pro rata share thereof; provided,
however, that in the event that the receipt by the Issuing Lender of such
reimbursement or such payment of interest (as the case may be) is required
to be returned, such Participating Lender will promptly return to the
Administrative Agent, for the account of the Issuing Lender, any portion
thereof previously distributed by the Issuing Lender to it.
4.5. Further Assurances. The Company hereby agrees, from time to
time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by the Issuing Lender more fully to effect
the purposes of this Agreement and the issuance of the Letters of Credit
issued hereunder.
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4.6. Obligations Absolute. The payment obligations of the Company
and each Participating Lender under subsection 4.4 shall be unconditional
and irrevocable and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including, without limitation, the
following circumstances:
(a) the existence of any claim, set-off, defense or other right
which the Company may have at any time against any beneficiary, or
any transferee, of any Letter of Credit (or any Persons for whom any
such beneficiary or any such transferee may be acting), the Issuing
Lender or any Participating Lender, or any other Person, whether in
connection with this Agreement, the transactions contemplated herein,
or any unrelated transaction;
(b) any statement or any other document presented under any
Letter of Credit opened for its account proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(c) payment by the Issuing Lender under any Letter of Credit
against presentation of a draft or certificate which does not comply
with the terms of such Letter of Credit, except payment resulting
solely from the gross negligence or willful misconduct of the Issuing
Lender; or
(d) any other circumstances or happening whatsoever, whether or
not similar to any of the foregoing, except circumstances or
happenings resulting from the gross negligence or willful misconduct
of the Issuing Lender.
4.7. Letter of Credit Application. To the extent not inconsistent
with the terms of this Agreement (in which case the provisions of this
Agreement shall prevail), provisions of any Letter of Credit Application
related to any Letter of Credit are supplemental to, and not in derogation
of, any rights and remedies of the Issuing Lender and the Participating
Lenders under this Section 4 and applicable law. The Company acknowledges
and agrees that all rights of the Issuing Lender under any Letter of Credit
Application shall inure to the benefit of each Participating Lender to the
extent of its Revolving Credit Commitment Percentage as fully as if such
Participating Lender was a party to such Letter of Credit Application.
4.8. Purpose of Letters of Credit. Each Standby Letter of Credit
shall be used by the Company solely (a) to provide credit support for
borrowings by the Company or its Subsidiaries, or (b) for other working
capital purposes of the Company and Subsidiaries in the ordinary course of
business. Each Commercial Letter of Credit will be used by the Company and
Subsidiaries solely to provide the primary means of payment in connection
with the purchase of goods or services by the Company and its Subsidiaries
in the ordinary course of business.
SECTION 5. GENERAL PROVISIONS
5.1. Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for
such Interest Period plus the Applicable Margin.
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(b) Each ABR Loan shall bear interest for each day on which it is
outstanding at a rate per annum equal to the Alternate Base Rate for such
day plus the Applicable Margin.
(c) Each Pounds Sterling Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
Eurocurrency Rate determined for such Interest Period plus the Applicable
Margin.
(d) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such amount shall bear interest for each day
after the due date until such amount is paid in full at a rate per annum
equal to (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection
plus 2% or (y) in the case of any such overdue interest, fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%. If
any Event of Default other than as described in the preceding sentence
shall occur and be continuing, and the Majority Lenders shall give notice
to the Company that this sentence shall apply, then, until such Event of
Default shall be cured or waived or such notice shall be withdrawn, the
outstanding principal amount of all Loans shall bear interest at 2% above
the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection (other than the first sentence of
this paragraph (d)).
(e) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (d) of this
subsection shall be payable from time to time on demand.
5.2. Conversion and Continuation Options. (a) The Company may elect
from time to time to convert outstanding Eurodollar Loans (in whole or in
part) to ABR Loans by giving the Administrative Agent at least two Business
Days' prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Company may elect from time to
time to convert outstanding ABR Loans (in whole or in part) to Eurodollar
Loans by giving the Administrative Agent at least three Business Days'
prior irrevocable notice of such election. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
All or any part of outstanding Eurodollar Loans and ABR Loans may be
converted as provided herein, provided that (i) no ABR Loan may be
converted into a Eurodollar Loan when any Default or Event of Default has
occurred and is continuing and the Administrative Agent or Lenders holding
the majority of the outstanding principal amount of Loans of such Class
have determined that such conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, subsection 5.3
shall not have been violated, and (iii) no ABR Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Revolving
Credit Termination Date or, as the case may be, the date on which the Term
Loans and New Revolving Credit Loans mature.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Company
giving notice to the Administrative Agent of the length of the next
Interest Period to be applicable to such Loans
37
determined in accordance with the applicable provisions of the term
"Interest Period" set forth in subsection 1.1, provided that no Eurodollar
Loan may be continued as such (i) when any Default or Event of Default has
occurred and is continuing and the Administrative Agent or Lenders holding
the majority of the outstanding principal amount of Loans of such Class
have determined that such continuation is not appropriate, (ii) if, after
giving effect thereto, subsection 5.3 would be contravened or (iii) after
the date that is one month prior to the Revolving Credit Termination Date
or, as the case may be, the date on which the Term Loans and New Revolving
Credit Loans mature, and provided, further, that if the Company shall fail
to give such notice or if such continuation is not permitted pursuant to
the preceding proviso such Eurodollar Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest
Period. Upon receipt of any notice pursuant to this subsection 5.2(b), the
Administrative Agent shall promptly notify each Lender thereof.
(c) Any Pounds Sterling Loans may be continued as set forth in
subsection 3.2(d).
5.3. Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, (i) the aggregate principal amount of
the Eurodollar Loans comprising each Tranche shall be equal to $5,000,000
or a whole multiple of $5,000,000 in excess thereof, (ii) the aggregate
principal amount of the Pounds Sterling Loans comprising each Tranche shall
be in an amount of which the U.S. Dollar Equivalent is at least $1,000,000
and (iii) there shall not be more than (ten) 10 Tranches at any one time
outstanding.
5.4. Optional and Mandatory Prepayments. (a) The Company may at any
time and from time to time prepay New Revolving Credit Loans, Revolving
Credit Loans or Term Loans, in whole or in part, upon at least three
Business Days' irrevocable notice to the Administrative Agent (in the case
of Eurodollar Loans) and at least one Business Day's irrevocable notice to
the Administrative Agent (in the case of ABR Loans), specifying the date
and amount of prepayment and whether the prepayment is (i) of New Revolving
Credit Loans, Revolving Credit Loans or Term Loans and (ii) of Eurodollar
Loans, ABR Loans or a combination thereof, and, in each case if a
combination thereof, the amount allocable to each. Upon the receipt of any
such notice the Administrative Agent shall promptly notify each Lender
thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein. Partial prepayments
of the Loans shall be in an aggregate principal amount of $1,000,000 or a
whole multiple of $1,000,000 in excess thereof.
(b) The Company or the Foreign Subsidiary Borrower, as the case may
be, may at any time and from time to time prepay, without premium or
penalty, the Pounds Sterling Loans, in whole or in part, upon at least
three Business Days' irrevocable notice to the Administrative Agent
specifying the date and amount of prepayment. Upon the receipt of any such
notice, the Administrative Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice shall be
due and payable on the date specified therein. Partial prepayments of
Pounds Sterling Loans shall be in an aggregate principal amount of which
the U.S. Dollar Equivalent is at least $1,000,000.
38
(c) If, at any time during the Revolving Credit Commitment Period,
for any reason the Aggregate Revolving Credit Outstanding of all Lenders
exceeds the Aggregate Revolving Credit Commitments then in effect, or the
Aggregate Revolving Credit Outstanding of any Lender exceeds the Revolving
Credit Commitment of such Lender then in effect, (i) the Company shall,
without notice or demand, immediately prepay the Revolving Credit Loans
and/or (ii) the Company or the Foreign Subsidiary Borrower shall, without
notice or demand, immediately prepay the Pounds Sterling Loans, in an
aggregate principal amount at least sufficient to eliminate any such
excess. Notwithstanding the foregoing, mandatory prepayments of Revolving
Credit Loans or Pounds Sterling Loans that would otherwise be required
pursuant to this subsection 5.4(c) solely as a result of currency
fluctuations from time to time shall only be required to be made pursuant
to this subsection 5.4 on the last Business Day of each month on the basis
of the U.S. Dollar Equivalent in effect on such Business Day.
(d) If any Capital Stock or Indebtedness shall be issued or incurred
by the Company or any of its Subsidiaries (excluding any Indebtedness
incurred in accordance with subsection 9.2 as such subsection is in effect
on the date of this Agreement), an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied on the date of such issuance or
incurrence ratably toward the prepayment of the Term Loans and, after the
New Revolving Credit Conversion Date, to the prepayment of the New
Revolving Credit Loans. This subsection 5.4(d) shall not affect any rights
and remedies that the Administrative Agent or the Lenders may otherwise
have under Section 11.
(e) If on any date the Company or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event then,
unless a Reinvestment Notice shall be delivered in respect thereof, such
Net Cash Proceeds shall be applied on such date, as set forth in subsection
5.8(a)(i), ratably toward the prepayment of the Term Loans and, after the
New Revolving Credit Conversion Date, to the prepayment of the New
Revolving Credit Loans; provided, that, notwithstanding the foregoing, (i)
the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may
be excluded from the foregoing requirement pursuant to a Reinvestment
Notice shall not exceed $1,000,000 in any fiscal year of the Company and
(ii) on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event shall be applied, as set forth in subsection 5.8(a)(i), ratably
toward the prepayment of the Term Loans and, after the New Revolving Credit
Conversion Date, to the prepayment of the New Revolving Credit Loans.
(f) Amounts prepaid on account of Term Loans pursuant to subsections
5.4(a), 5.4(d) or 5.4(e) may not be reborrowed. Amounts prepaid on account
of New Revolving Credit Loans pursuant to subsection 5.4(a) may be
reborrowed during the New Revolving Credit Commitment Period. After the New
Revolving Credit Conversion Date, amounts prepaid on account of New
Revolving Credit Loans pursuant to subsections 5.4(a), 5.4(d) or 5.4(e) may
not be reborrowed.
(g) Each prepayment of Loans pursuant to this subsection 5.4 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the
date of prepayment and any amounts payable under subsection 5.11 in
connection with such prepayment.
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(h) The Revolving Credit Loans shall be prepaid and the Letters of
Credit shall be cash collateralized or replaced to the extent such
extensions of credit exceed the amount of the Revolving Credit Commitments.
5.5. Commitment Fees; Other Fees. (a) The Company agrees to pay to
the Administrative Agent (i) for the account of each Lender (other than any
Lender which has defaulted in its obligation to fund a Loan under this
Agreement), a commitment fee for the period from and including the Closing
Date to but excluding the Revolving Credit Termination Date (or such
earlier date on which the Revolving Credit Commitments shall terminate as
provided herein) computed at the rate per annum set forth in the definition
of "Applicable Margin" on the average daily Available Revolving Credit
Commitment of such Lender during the period for which payment is made,
payable quarterly in arrears on the last day of each March, June, September
and December and on the Revolving Credit Termination Date or such earlier
date on which the Revolving Credit Commitments shall terminate as provided
herein, commencing on the first such date to occur after the date hereof;
(ii) for the account of each Lender (other than any Lender which has
defaulted in its obligation to fund a Loan under this Agreement), a
commitment fee for the period from and including the Closing Date to but
excluding the Term Loan Termination Date (or such earlier date on which the
Term Loan Commitments shall terminate as provided herein) computed at the
rate per annum set forth in the definition of "Applicable Margin" on the
average daily Available Term Loan Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on the last
day of each March, June, September and December and on the Term Loan
Termination Date or such earlier date on which the Term Loan Commitments
shall terminate as provided herein, commencing on the first such date to
occur after the date hereof. For purposes of the commitment fee
calculations only, Swing Line Loans shall be deemed to be not outstanding;
and (iii) for the account of each New Revolving Credit Lender (other than
any New Revolving Credit Lender which has defaulted in its obligation to
fund a New Revolving Credit Loan under this Agreement), a commitment fee
for the period from and including the Closing Date to but excluding the New
Revolving Credit Conversion Date (or such earlier date on which the New
Revolving Credit Commitments shall terminate as provided herein) computed
at the rate per annum set forth in the definition of "Applicable Margin" on
the average daily Available New Revolving Credit Commitment of such New
Revolving Credit Lender during the period for which payment is made,
payable quarterly in arrears on the last day of each March, June, September
and December and on the New Revolving Credit Conversion Date or such
earlier date on which the New Revolving Credit Commitments shall terminate
as provided herein, commencing on the first such date to occur after the
date hereof.
(b) The Company shall pay (without duplication of any other fee
payable under this subsection 5.5) to the Administrative Agent all fees
separately agreed to by the Company and the Administrative Agent.
(c) The Company shall pay to the Administrative Agent (i) on the
Closing Date (A) for the account of the Lenders, an amendment fee (the
"Amendment Fee") in an amount equal to 0.10% of the sum of each Lender's
Term Loans, Revolving Credit Commitments and Existing New Revolving Credit
Commitments and (B) for the account of the New Revolving Credit Lenders, an
up-front fee (the "Up-Front Fee") in an amount equal to 0.25% of each New
Revolving Credit Lender's New Revolving Credit Commitment Increase, and
(ii) on the date of
40
each borrowing made under the New Revolving Credit Commitment Increase, for
the account of the New Revolving Credit Lenders, a drawdown fee (the
"Drawdown Fee") in an amount equal to 0.25% of each incremental borrowing
made under the New Revolving Credit Commitment Increase.
(d) In lieu of any letter of credit commissions and fees provided for
in any Letter of Credit Application relating to a Standby Letter of Credit
(other than any standard issuance, amendment and negotiation fees), the
Company will pay the Administrative Agent, (i) for the account of the
Issuing Lender, a non-refundable fronting fee equal to ? of 1% per annum
and (ii) for the account of the Issuing Lender (with respect to its
Participating Interest) and the Participating Lenders, a non-refundable
Standby Letter of Credit fee equal to the Applicable Margin in respect of
Eurodollar Loans, in each case on the amount available to be drawn under
such Standby Letter of Credit. Such fees shall be payable quarterly in
arrears on the last Business Day of each calendar quarter, and shall be
calculated on the average daily amount available to be drawn under the
Standby Letters of Credit.
(e) In lieu of any letter of credit commissions and fees provided for
in any Letter of Credit Application relating to a Commercial Letter of
Credit (other than any standard issuance, amendment and negotiation fees),
the Company will pay the Administrative Agent, (i) for the account of the
Issuing Lender, a non-refundable fronting fee equal to 1/16 of 1% of the
amount of such Commercial Letter of Credit, (ii) for the account of the
Issuing Lender (with respect to its Participating Interest) and the
Participating Lenders, a non-refundable Commercial Letter of Credit fee
equal to 1/4 of 1% of the amount of such Letter of Credit. Such fees shall
be payable to the Administrative Agent on the date of issuance and shall be
distributed by the Administrative Agent to the Issuing Lender or the
Participating Lenders, as applicable, promptly thereafter and (iii) for the
account of the Administrative Agent, the normal and customary Letter of
Credit application and processing fees.
(f) The Company agrees to pay the Issuing Lender for its own account
the customary administration, amendment, transfer and negotiation fees
charged by the Issuing Lender in connection with its issuance and
administration of Letters of Credit.
5.6. Computation of Interest and Fees. (a) Interest and fees shall
be calculated on the basis of a 360-day year for the actual days elapsed;
provided that interest calculated at Alternate Base Rate (based on the
Prime Rate included therein) shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Company and
the relevant Lenders of each determination of a Eurodollar Rate or a
Eurocurrency Rate. Any change in the interest rate on a Loan resulting from
a change in the Alternate Base Rate shall become effective as of the
opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Company and
the relevant Lenders of the effective date and the amount of each such
change in the Alternate Base Rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers and the Lenders in the absence of manifest error.
The Administrative Agent shall, at the request of a
41
Borrower, deliver to such Borrower a statement showing in reasonable detail
the calculations used by the Administrative Agent in determining any
interest rate pursuant to subsection 5.1(a).
5.7. Inability to Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers)
that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate or the Eurocurrency Rate, as the case may be, for
such Interest Period, or
(b) the Administrative Agent has received notice from the
Majority Lenders that the Eurodollar Rate or Eurocurrency Rate, as
the case may be, determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Eurodollar Loans or Pounds
Sterling Loans, as the case may be, during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof
to the Company and the Lenders as soon as practicable thereafter. If such
notice is given (i) any Eurodollar Loans or Pounds Sterling Loans, as the
case may be, requested to be made on the first day of such Interest Period
shall be made as ABR Loans in U.S. Dollars, (ii) any Revolving Credit
Loans, New Revolving Credit Loans or Term Loans that were to have been
converted on the first day of such Interest Period to or continued as
Eurodollar Loans shall be converted to or continued as ABR Loans, (iii) any
outstanding Eurodollar Loans shall be converted on the last day of such
Interest Period to ABR Loans and (iv) any Pounds Sterling Loans to which
such Interest Period relates shall be repaid on the last day of such
Interest Period. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loans or Pounds Sterling Loans shall be made
or continued as such, nor shall the Company have the right to convert ABR
Loans to Eurodollar Loans.
5.8. Pro Rata Treatment and Payments. (a) (i) Each borrowing of
Revolving Credit Loans or Term Loans, as the case may be, by the Company
from the Lenders hereunder shall be made pro rata according to the
Revolving Credit Commitment Percentages or the Term Loan Commitment
Percentages, as the case may be, of the Lenders in effect on the date of
such borrowing. Subject to subsection 2.10(b), each borrowing of New
Revolving Credit Loans by the Company from the New Revolving Credit Lenders
made (A) under the Existing New Revolving Credit Commitments shall be made
pro rata according to the Existing New Revolving Credit Commitment
Percentages of the New Revolving Credit Lenders in effect on the date of
such borrowing and (B) under the New Revolving Credit Commitment Increases
shall be made pro rata according to the New Revolving Credit Commitment
Increase Percentages of the New Revolving Credit Lenders in effect on the
date of such borrowing. Each payment by the Company on account of any
commitment fee or letter of credit fee hereunder shall be allocated by the
Administrative Agent among the Lenders in accordance with the respective
amounts which such Lenders are entitled to receive pursuant to subsection
5.5. Subject to subsection 2.13, any reduction of the Existing New
Revolving Credit Commitments, New Revolving Credit Commitment Increases,
Revolving Credit Commitments or the Term Loan Commitments, as the case may
be, of the Lenders shall be allocated by the Administrative Agent among the
Lenders
42
pro rata according to the Existing New Revolving Credit Commitment
Percentages, New Revolving Credit Commitment Increase Percentages,
Revolving Credit Commitment Percentages or the Term Loan Commitment
Percentages, as the case may be, of such Lenders. Each payment by the
Company on account of principal of or interest in respect of Revolving
Credit Loans, Term Loans or, after the New Revolving Credit Conversion
Date, New Revolving Credit Loans shall be allocated by the Administrative
Agent pro rata according to the respective amounts thereof then due and
owing to each Lender. During the New Revolving Credit Commitment Period,
each payment by the Company on account of principal of or interest in
respect of New Revolving Credit Loans made under the Existing New Revolving
Credit Commitments or under the New Revolving Credit Commitment Increases
shall be allocated by the Administrative Agent to the New Revolving Credit
Lenders under the Existing New Revolving Credit Commitments or the New
Revolving Credit Commitment Increases, as the case may be, pro rata
according to the respective amounts of such principal or interest then due
and owing such New Revolving Credit Lenders; provided that during the New
Revolving Credit Commitment Period, no payment of principal shall be made
on the New Revolving Credit Loans made under the Existing New Revolving
Credit Commitments at any time when any New Revolving Credit Loans made
under the New Revolving Credit Commitment Increases are outstanding.
Prepayments of Term Loans or New Revolving Credit Loans pursuant to
subsections 5.4(a), 5.4(d) and 5.4(e) shall be applied (x) pro rata
according to the respective principal amounts thereof then due and owing to
each Lender and (y) to the respective installments of principal thereof in
inverse order of maturity. All payments (including prepayments) to be made
by the Company in respect of New Revolving Credit Loans, Revolving Credit
Loans or Term Loans hereunder, whether on account of principal, interest,
fees or otherwise, shall be made without set-off or counterclaim and shall
be made prior to 12:00 Noon, New York City time, on the due date thereof to
the Administrative Agent, for the account of the Lenders entitled thereto,
at the Administrative Agent's office specified in subsection 13.2, in U.S.
Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders entitled to receive the same
promptly upon receipt in like funds as received.
(ii) Each borrowing of Pounds Sterling Loans by the Company or the
Foreign Subsidiary Borrower shall be made pro rata according to the
Revolving Credit Commitment Percentages of the Lenders. Each payment
(including each prepayment) by the Company or the Foreign Subsidiary
Borrower on account of principal of and interest on Pounds Sterling Loans
shall be allocated by the Administrative Agent pro rata according to the
respective amounts of the Pounds Sterling Loans then due and owing by the
Company or the Foreign Subsidiary Borrower to each Lender. All payments
(including prepayments) to be made by the Company or the Foreign Subsidiary
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made
at or before 11:00 A.M. London Time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Administrative
Agent's office located at Trinity Tower, 9 Thomas Moore Street, London,
England E1 9YT, in Pounds Sterling and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders entitled
to receive the same promptly upon receipt in like funds as received.
43
(iii) If any payment hereunder (other than payments on the Eurodollar
Loans and the Pounds Sterling Loans) becomes due and payable on a day other
than a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan or a Pounds Sterling Loan
becomes due and payable on a day other than a Business Day, the maturity of
such payment shall be extended to the next succeeding Business Day (and,
with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension) unless the result of such
extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding
Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Lender will not
make the amount that would constitute its share of such borrowing available
to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available
to the applicable Borrower a corresponding amount. If such amount is not
made available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate per annum equal to
(i) the daily average Federal Funds Effective Rate (in the case of a
borrowing of Revolving Credit Loans, New Revolving Credit Loans or Term
Loans) and (ii) the Administrative Agent's reasonable estimate of its
average daily cost of funds (in the case of a borrowing of Pounds Sterling
Loans), in each case for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error. If such Lender's share of such borrowing is not made available to
the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the applicable Borrower shall repay such Lender's share of
such borrowing (together with interest thereon from the date such amount
was made available to such Borrower (i) at the rate per annum applicable to
ABR Loans hereunder (in the case of amounts made available in U.S. Dollars)
and (ii) the Administrative Agent's reasonable estimate of its average
daily cost of funds plus the Applicable Margin applicable to Pounds
Sterling Loans (in the case of a borrowing of Pounds Sterling Loans)) to
the Administrative Agent not later than three Business Days after receipt
of written notice from the Administrative Agent specifying such Lender's
share of such borrowing that was not made available to such Administrative
Agent, and the Borrower shall have the right to pursue any remedies against
such Lender for its failure to make its portion of such borrowing
available.
(c) Unless the Administrative Agent shall have been notified in
writing by any Borrower prior to a date on which a payment is due from such
Borrower hereunder that such Borrower will not make such payment available
to the Administrative Agent, the Administrative Agent may assume that such
Borrower is making such amount available to the Administrative Agent, and
the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Lenders a corresponding amount. If such amount
is not made available to the Administrative Agent by the required time on
the due date therefor, each applicable Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a
rate per
44
annum equal to (i) the daily average Federal Funds Effective Rate (in the
case of a borrowing of Revolving Credit Loans, New Revolving Credit Loans
or Term Loans) and (ii) the Administrative Agent's reasonable estimate of
its average daily cost of funds (in the case of a borrowing of Pounds
Sterling Loans), in each case for the period until such Lender makes such
amount immediately available to the Administrative Agent. A certificate of
the Administrative Agent submitted to any Lender with respect to any
amounts owing under this subsection shall be conclusive in the absence of
manifest error.
5.9. Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender
to make or maintain Eurodollar Loans or Pounds Sterling Loans as
contemplated by this Agreement, (a) the commitment of such Lender hereunder
to make Eurodollar Loans or Pounds Sterling Loans, continue Eurodollar
Loans or Pounds Sterling Loans as such and convert ABR Loans to Eurodollar
Loans shall forthwith be cancelled until such time as it shall no longer be
unlawful for such Lender to make or maintain the affected Loans, (b) such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to ABR Loans on the respective last days of the
then current Interest Periods with respect to such Eurodollar Loans or
within such earlier period as may be required by law and (c) such Lender's
Pounds Sterling Loans shall be prepaid on the last day of the then current
Interest Period with respect thereto or within such earlier period or may
be required by law. If any such conversion of a Eurodollar Loan or
repayment of a Pounds Sterling Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the Company
shall pay to such Lender such amounts, if any, as may be required pursuant
to subsection 5.11.
5.10. Requirements of Law. (a) In the event that the adoption of or
any change in any Requirement of Law (or in the interpretation or
application thereof) or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or
other Governmental Authority:
(i) does or shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Loans made
by it or any Letter of Credit, or change the basis of taxation of
payments to such Lender of principal, fees, interest or any other
amount payable hereunder (except for changes in the rate of tax on
the overall net income of such Lender);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for
the account of, advances or loans by, or other credit extended by, or
any other acquisition of funds by, any office of such Lender which
are not otherwise included in the determination of the Eurodollar
Rate or Eurocurrency Rate; or
(iii) does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender, by any amount which such Lender deems to be material, of making,
renewing, maintaining or participating in advances or extensions of credit
or to reduce any amount receivable hereunder, in each case in respect of
its Loans or Letters of Credit which it issues or in which it holds
Participating Interests, then, in
45
any such case, the applicable Borrower shall promptly pay such Lender, upon
receipt of its demand setting forth in reasonable detail, any additional
amounts necessary to compensate such Lender for such additional cost or
reduced amount receivable, together with interest on each such amount from
the date two Business Days after the date demanded until payment in full
thereof at the ABR. A certificate as to any additional amounts payable
pursuant to the foregoing sentence submitted by such Lender, through the
Administrative Agent, to the applicable Borrower shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of
this Agreement and payment of all amounts outstanding hereunder for a
period of one year.
(b) In the event that any Lender shall have determined that the
adoption of any law, rule, regulation or guideline regarding capital
adequacy (or any change therein or in the interpretation or application
thereof) or compliance by any Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any central bank or Governmental
Authority, including, without limitation, the issuance of any final rule,
regulation or guideline, does or shall have the effect of reducing the rate
of return on such Lender's or such corporation's capital as a consequence
of its obligations hereunder to a level below that which such Lender or
such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, after submission by such
Lender to the Company (with a copy to the Administrative Agent) of a
written request therefor, the Company shall promptly pay to such Lender
such additional amount or amounts as will compensate such Lender or such
corporation for such reduction. A certificate as to any additional amounts
payable pursuant to this subsection 5.10(b), submitted by a Lender to the
Company, shall be conclusive in the absence of manifest error. The
provisions of this subsection 5.10(b) shall survive the termination of this
Agreement and the payment of all amounts outstanding hereunder.
(c) Any request by any Lender for compensation under this subsection
5.10 shall be accompanied by a certificate of a duly authorized officer of
such Lender setting for such information and calculations supporting such
request as such Lender shall customarily provide in similar situations.
5.11. Indemnity. Each Borrower agrees to indemnify each Lender and
to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in
payment when due of the principal amount of or interest on any Loans of
such Lender, (b) default by such Borrower in making a borrowing,
continuation or conversion after such Borrower has given a notice of
borrowing, a notice of continuation or a notice of conversion in accordance
with this Agreement, (c) default by such Borrower in making any prepayment
after such Borrower has given a notice in accordance with this Agreement or
(d) the making of a prepayment, continuation or conversion of a Eurodollar
Loan or Pounds Sterling Loan on a day which is not the last day of an
Interest Period with respect thereto, including, without limitation, in
each case, any such loss or expense arising from the reemployment of funds
obtained by it to maintain its Eurodollar Loans or Pounds Sterling Loans
hereunder or from fees payable to terminate the deposits from which such
funds were obtained, but excluding, in each case, lost profit. A
certificate as to any amounts payable pursuant to this subsection 5.11,
submitted by a Lender to the Company, shall be conclusive in
46
the absence of manifest error. This covenant shall survive termination of
this Agreement and payment of all amounts outstanding hereunder.
5.12. Taxes. (a) All payments made by any Borrower under this
Agreement shall be made free and clear of, and without reduction or
withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority excluding, in the case of the
Administrative Agent and each Lender, income or franchise taxes imposed on
the Administrative Agent or such Lender by the jurisdiction under the laws
of which the Administrative Agent or such Lender is organized or any
political subdivision or taxing authority thereof or therein or by any
jurisdiction in which such Lender's lending office is located or any
political subdivision or taxing authority thereof or therein or as a result
of a connection between such Lender and any jurisdiction other than a
connection resulting solely from entering into this Agreement (all such
non-excluded taxes, levies, imposts, deductions, charges or withholdings
being hereinafter called "Non-Excluded Taxes"). Subject to the provisions
of subsection 5.12(c), if any Non-Excluded Taxes are required to be
withheld from any amounts payable by such Borrower to the Administrative
Agent or any Lender hereunder or under the Notes, the amounts so payable to
the Administrative Agent or such Lender shall be increased to the extent
necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this
Agreement and the Notes. Whenever any Non-Excluded Taxes are paid by any
Borrower with respect to payments made in connection with this Agreement,
as promptly as possible thereafter, such Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender,
as the case may be, a certified copy of an original official receipt
received by such Borrower showing payment thereof. Subject to the
provisions of subsection 5.12(c), if any Borrower fails to pay any Non-
Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, such Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that
may become payable by the Administrative Agent or any Lenders as a result
of any such failure.
(b) Each Lender that is not incorporated or organized under the laws
of the United States of America or a state thereof agrees that, prior to
the first date any payment is due to be made to it hereunder or under any
Note, it will deliver to the Company and the Administrative Agent (A) if
such Lender is a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, (i) two valid, duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor applicable form, as the case
may be, certifying in each case that such Lender is entitled to receive
payments by the Borrower under this Agreement and the Notes payable to it,
without deduction or withholding of any United States federal income taxes,
and (ii) a valid, duly completed Internal Revenue Service Form W-8 or W-9
or successor applicable form, as the case may be, to establish an exemption
from United States backup withholding tax or (B) if such Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 or successor
applicable form, (i) a certificate substantially in the form of Exhibit H
(a "Tax Status Certificate") and (ii) two completed and signed copies of
Internal Revenue Service Form W-8 or successor applicable
47
form, to establish in each case that such Lender is entitled to receive
payments by the Borrowers under this Agreement and the other Loan Documents
without deduction or withholding of any United States federal income taxes.
Each Lender which delivers to the Company and the Administrative Agent a
Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms,
pursuant to the next preceding sentence further undertakes to deliver to
the Company and the Administrative Agent two further copies of the said
Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms, or
other manner or certification, as the case may be, on or before the date
that any such form expires or becomes obsolete or otherwise is required to
be resubmitted as a condition to obtaining an exemption from withholding
tax, or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Company, and such extensions
or renewals thereof as may reasonably be requested by the Company,
certifying in the case of a Form 1001 or 4224 or successor applicable form
that such Lender is entitled to receive payments by the Company under this
Agreement without deduction or withholding of any United States federal
income taxes, unless any change in treaty, law or regulation or official
interpretation thereof has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such letter or form with respect to it and such Lender
advises the Company that it is not capable of receiving payments without
any deduction or withholding of United States federal income tax, and in
the case of a Form W-8 or W-9 or successor applicable form, establishing an
exemption from United States backup withholding tax.
(c) The Company shall not be required to pay any additional amounts
to the Administrative Agent or any Lender (or Transferee except to the
extent such Transferee's transferor was entitled, at the time of transfer,
to receive additional amounts from the Company) in respect of United States
withholding tax pursuant to subsection 5.12(a) if the obligation to pay
such additional amounts would not have arisen but for a failure by the
Administrative Agent or such Lender (or Transferee) to comply, if
applicable, with the requirements of subsection 5.12(b) (or in the case of
a Transferee, the requirements of subsection 13.6(h)).
(d) Each Lender that is not incorporated or organized under the laws
of the jurisdiction under which the Foreign Subsidiary Borrower is
incorporated or organized shall, upon request by the Foreign Subsidiary
Borrower, within a reasonable period of time after such request, deliver to
the Foreign Subsidiary Borrower or the applicable governmental or taxing
authority, as the case may be, any form or certificate required in order
that any payment by the Foreign Subsidiary Borrower under this Agreement to
such Lender may be made free and clear of, and without deduction or
withholding for or on account of any Non-Excluded Taxes (or to allow any
such deduction or withholding to be at a reduced rate) imposed on such
payment under the laws of the jurisdiction under which the Foreign
Subsidiary Borrower is incorporated or organized, provided that such Lender
is legally entitled to complete, execute and deliver such form or
certificate and such completion, execution or submission would not
materially prejudice the legal position of such Lender.
(e) Except as otherwise provided in subsection 5.14(a), each Lender
agrees to use reasonable efforts (including reasonable efforts to change
its lending office) to avoid or to minimize any amounts which might
otherwise be payable pursuant to this subsection 5.12;
48
provided, however, that such efforts shall not impose on such Lender any
additional costs or legal or regulatory burdens deemed by such Lender in
its sole judgment to be material.
(f) The agreements in subsection 5.12(a) shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder until the expiration of the applicable statute of
limitations for such taxes.
5.13. Use of Proceeds. The proceeds of the Revolving Credit Loans
and the Pounds Sterling Loans shall be used for the general working capital
and general corporate purposes of the Company and its Subsidiaries. If, and
so long as, the New Revolving Credit Loans are fully drawn, a portion of
the proceeds of the Revolving Credit Loans not in excess of $14,000,000 may
be used to finance the Global Health Acquisition and the NatureSmart
Acquisition, provided that the New Revolving Credit Loans have been fully
utilized. The proceeds of the New Revolving Credit Loans after the Closing
Date shall be used to finance Acquisitions, including the Global Health
Acquisition and the NatureSmart Acquisition, permitted under this
Agreement. The Letters of Credit shall be used for the purposes specified
in subsection 4.8.
5.14. Change in Lending Office; Replacement of Lender. (a) Each
Lender agrees that if it makes any demand for payment under subsection 5.10
or 5.12(a), or if any adoption or change of the type described in
subsection 5.9 shall occur with respect to it, it will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to
it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need
for any Borrower to make payments under subsection 5.10 or 5.12(a), or
would eliminate or reduce the effect of any adoption or change described in
subsection 5.9.
(b) If any Lender requests any payment under subsection 5.10 or
5.12(a), the Borrower shall have the right to replace such Lender with one
or more replacement lenders, each of which shall be reasonably acceptable
to the Administrative Agent; provided that (i) the Borrower shall repay (or
the replacement lender shall purchase) all Loans and other amounts owing
hereunder to such replaced Lender prior to the date of replacement, (ii)
until such time as such replacement shall be consummated, the Borrower
shall pay additional amounts (if any) required pursuant to subsection 5.10
or 5.12 for the period prior to replacement and (iii) any such replacement
shall not be deemed to be a waiver of any rights which the Borrower, the
Administrative Agent or any other Lender shall have against the replaced
Lender.
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Loans, and to induce the Issuing Lender to issue Letters of Credit, each
Borrower hereby represents and warrants to the Administrative Agent and to
each Lender that:
6.1. Financial Condition. (a) The consolidated balance sheet of the
Company and its consolidated Subsidiaries as at September 30, 2000 and the
related consolidated statements of income and of cash flows for the fiscal
year ended on such date, reported on by PricewaterhouseCoopers LLP, copies
of which have heretofore been furnished to each Lender,
49
are complete and correct in all material respects and present fairly the
consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then
ended. The unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at December 31, 2000 and the related unaudited
consolidated statements of income and of cash flows for the three-month
period ended on such date, certified by the chief financial officer of the
Company, copies of which have heretofore been furnished to each Lender, are
complete and correct in all material respects and present fairly the
consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the respective three-month
period then ended (subject to normal year-end audit adjustments). All such
financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout
the periods involved (except as approved by such accountants or chief
financial officer, as the case may be, and as disclosed therein). Except as
set forth on Schedule 6.1, neither the Company nor any of its consolidated
Subsidiaries had, at the date of the most recent balance sheet referred to
above, any material Guarantee Obligation, contingent liability or liability
for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign
currency swap or exchange transaction, which is not reflected in the
foregoing statements or in the notes thereto. During the period from
September 30, 2000 to and including the date hereof there has been no sale,
transfer or other disposition by the Company or any of its consolidated
Subsidiaries of any material part of its business or property and no
purchase or other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the consolidated
financial condition of the Company and its consolidated Subsidiaries at
September 30, 2000, other than the sale of inventory in the ordinary course
of business and as otherwise permitted hereunder.
(b) The financial projections of the Company and its Subsidiaries
described in subsection 7.1(k), copies of which have been furnished to each
Lender, have been prepared in good faith based upon reasonable assumptions.
6.2. No Change. Since September 30, 2000 there has been no
development or event which has had or could reasonably be expected to have
a Material Adverse Effect.
6.3. Corporate Existence; Compliance with Law. Each Loan Party and
its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has
the power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a
foreign entity and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that the failure
to be so qualified in any such jurisdiction could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect, and (d) is in
compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
6.4. Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the power and authority, and the legal right, to make,
deliver and perform the Loan
50
Documents to which it is a party and to borrow and obtain other extensions
of credit hereunder and has taken all necessary action to authorize the
borrowings and other extensions of credit hereunder on the terms and
conditions of this Agreement and any Notes and to authorize the execution,
delivery and performance of the Loan Documents to which it is a party. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings or other extensions of credit hereunder or
with the execution, delivery, performance, validity or enforceability of
the Loan Documents. This Agreement has been, and each other Loan Document
to which it is a party will be, duly executed and delivered on behalf of
each Loan Party that is a party hereto or thereto. This Agreement
constitutes, and each other Loan Document to which it is a party when
executed and delivered will constitute, a legal, valid and binding
obligation of each Loan Party that is a party hereto or thereto enforceable
against such Loan Party 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.
6.5. No Legal Bar. The execution, delivery and performance of the
Loan Documents, the borrowings and other extensions of credit hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of any Loan Party or of any of its Subsidiaries and
will not result in, or require, the creation or imposition of any Lien on
any of its or their respective properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation.
6.6. No Material Litigation. Except as set forth on Schedule 6.6,
no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Loan Parties,
threatened by or against any Loan Party or any of its Subsidiaries or
against any of its or their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected
to have a Material Adverse Effect.
6.7. No Default. No Loan Party or any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
6.8. Ownership of Property; Liens. Each of the Loan Parties and its
Subsidiaries has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other property, except to the extent
that the failure to have such title would not have a Material Adverse
Effect, and none of such property is subject to any Lien except as
permitted by subsection 9.3. With respect to real property or interests in
real property, as of the Closing Date, the Company has (i) fee title to all
of the real property listed on Schedule 6.8 under the heading "Fee
Properties" (each, a "Fee Property"), and (ii) good and valid title to the
leasehold estates in all of the real property leased by it and listed on
Schedule 6.8 under the heading "Leased Properties" (each, a "Leased
Property"), in each case free and clear of all mortgages, liens, security
interests, easements, covenants, rights-of-way and other similar
restrictions of any nature whatsoever, except (A)
51
Liens permitted pursuant to subsection 9.3, (B) as to Leased Property, the
terms and provisions of the respective lease therefor and any matters
affecting the fee title and any estate superior to the leasehold estate
related thereto, and (C) title defects, or leases or subleases granted to
others, which are not material to the Fee Properties or the Leased
Properties, as the case may be, taken as a whole. The Fee Properties and
the Leased Properties constitute, as of the Closing Date, all of the real
property owned in fee or leased by the Company.
6.9. Intellectual Property. Each Loan Party, and each of its
Subsidiaries, owns, or is licensed to use or otherwise has the right to
use, all trademarks, tradenames, copyrights, patents, trade secrets and
other proprietary information that it uses in the conduct of its business
as currently conducted except for those the failure to own or license which
could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). To the knowledge of each Loan Party, no claim has
been asserted and is pending by any Person challenging or questioning the
use of any such Intellectual Property or the validity or enforceability of
any such Intellectual Property, nor does any Loan Party know of any valid
basis for any such claim. The use of such Intellectual Property by each
Loan Party and its Subsidiaries does not infringe on the rights of any
Person, except for such claims and infringements that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
6.10. No Burdensome Restrictions. No Contractual Obligation of any
Loan Party or any of its Subsidiaries could reasonably be expected to have
a Material Adverse Effect.
6.11. Taxes. Each Loan Party, and each of its Subsidiaries, has
filed or caused to be filed all material tax returns which, to the
knowledge of the Loan Parties, are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any assessments
made against it or any of its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority
(other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of
such Loan Party or its Subsidiaries, as the case may be); and no tax Lien
has been filed, and, to the knowledge of the Loan Parties, no claim is
being asserted, with respect to any such tax, fee or other charge.
6.12. Federal Regulations. No part of the proceeds of any Loans,
and no Letter of Credit, will be used for "purchasing" or "carrying" any
"margin stock" within the respective meanings of each of the quoted terms
under Regulation U of the Board as now and from time to time hereafter in
effect. If requested by any Lender or the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR
Form G-3 or FR Form U-1 referred to in said Regulation U, as the case may
be.
6.13. ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302
of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan.
No termination of a Single Employer Plan has occurred, and no Lien in favor
of the PBGC or a Plan has arisen, during such five-year period. The present
value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plan) did not, as of the last annual
valuation date prior to the date on which this
52
representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits by an amount which has
resulted or could result in any material liability to any Loan Party or
Commonly Controlled Entity. No Loan Party or any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan which
has resulted or which could result in any material liability of any Loan
Party or Commonly Controlled Entity, and no Loan Party or any Commonly
Controlled Entity would become subject to any material liability under
ERISA if the Borrower or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation date
most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvent.
The Company has adopted FASB 106.
6.14. Investment Company Act; Other Regulations. The Company is not
an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended. The Company is not subject to regulation under any Federal or
State statute or regulation (other than Regulation X of the Board) which
limits its ability to incur Indebtedness.
6.15. Subsidiaries. Schedule II sets forth all Subsidiaries of the
Company as of the Closing Date.
6.16. Environmental Matters. Except to the extent that all of the
following, taken together, could not reasonably be expected to result in a
Material Adverse Effect or to result in the payment of Material
Environmental Amount:
(a) The facilities and properties owned, leased or operated by
each Loan Party or any of its Subsidiaries (the "Properties") do not
contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i)
constitute or constituted a violation of, or (ii) could reasonably be
expected to give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in
all material respects with all applicable Environmental Laws, and
there is no contamination at, under or about the Properties or
violation of any Environmental Law with respect to the Properties or
the business operated by any Loan Party or any of its Subsidiaries
(the "Business") which could materially interfere with the continued
operation of the Properties or materially impair the fair saleable
value thereof.
(c) Neither any Loan Party nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the
Properties or the Business, nor does any Loan Party have knowledge or
reason to believe that any such notice will be received or is being
threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in
a manner or to a location which could reasonably be expected to give
rise to liability under, any Environmental Law, nor have any
53
Materials of Environmental Concern been generated, treated, stored or
disposed of at, on or under any of the Properties or elsewhere in
violation of, or in a manner that could reasonably be expected to
give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Loan Parties,
threatened, under any Environmental Law to which any Loan Party or
any Subsidiary thereof is or will be named as a party with respect to
the Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders,
or other administrative or judicial requirements outstanding under
any Environmental Law with respect to the Properties or the Business.
(f) There has been no release or threat of release of Materials
of Environmental Concern at or from the Properties, or arising from
or related to the operations of any Loan Party or any Subsidiary
thereof in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that
could reasonably give rise to liability under Environmental Laws.
6.17. Solvency. Each Loan Party is, and after giving effect to the
consummation of any Acquisition and to the incurrence of all Indebtedness
and obligations being incurred in connection herewith and therewith will be
and will continue to be, Solvent.
6.18. Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for
the benefit of the Lenders, a legal, valid and enforceable security
interest in the Collateral described, and as defined, therein and proceeds
thereof, and, after taking the actions described in Schedule 3 thereto, the
Guarantee and Collateral Agreement shall at all times constitute a fully
perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Collateral located in the State of New York and
the proceeds thereof, as security for the Secured Obligations (as defined
in the Guarantee and Collateral Agreement), in each case prior and superior
in right to any other Person, other than with respect to Liens expressly
permitted by subsection 9.3.
(b) The English Security Documents are or will be effective to create
in favor of the Administrative Agent, for the benefit of the Lenders, a
legal, valid and enforceable security interest in the Collateral described,
and as defined, therein and proceeds thereof, and, after taking the actions
described therein, the English Security Documents shall at all times
constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral and the proceeds
thereof, as security for the Secured Obligations (as defined in the English
Security Documents), in each case prior and superior in right to any other
Person, other than with respect to Liens expressly permitted by subsection
9.3.
6.19. Accuracy of Information. No statement or information
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished in writing to the Administrative Agent
or the Lenders or any of them, by or on behalf of any Loan Party for use in
connection with the transactions contemplated by this Agreement or the
other Loan Documents, taken as a whole together with all other information
provided in this Agreement, the other Loan Documents or any other such
document, certificate or statement,
54
contained as of the date such statement, information, document or
certificate was so furnished any untrue statement of any fact material to
the interests of the Administrative Agent or any Lender, or omitted to
state a fact necessary in order to make the statements contained herein or
therein not misleading in any respect material to the interests of the
Administrative Agent or any Lender. There is no fact known to any Loan
Party that could reasonably be expected to have a Material Adverse Effect
that has not been expressly disclosed herein, in the other Loan Documents
or in such other documents, certificates and statements furnished to the
Administrative Agent and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents.
SECTION 7. CONDITIONS PRECEDENT
7.1. Conditions to Closing Date. The Closing Date shall occur on
the date of satisfaction of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrowers, with a counterpart for each
Lender, and (ii) the Acknowledgment and Consent to the Guarantee and
Collateral Agreement, substantially in the form of Exhibit I hereto,
executed and delivered by a duly authorized officer of the parties
thereto, with a counterpart or a conformed copy for each Lender.
(b) Closing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of the Company
and the other domestic Loan Parties, dated the Closing Date,
substantially in the form of Exhibit G with appropriate insertions
and attachments, satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President
and the Secretary or any Assistant Secretary of the Company and the
domestic Loan Parties.
(c) Corporate Proceedings of the Company. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy
of the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of the Company
authorizing (i) the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party, (ii)
the borrowings contemplated hereunder and (iii) the granting by it of
the Liens created pursuant to the Security Documents to which the
Company is a party, certified by the Secretary or an Assistant
Secretary of the Company as of the Closing Date, which certificate
shall be in form and substance satisfactory to the Administrative
Agent and shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded.
(d) Company Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a
certificate of the Company, dated the Closing Date, as to the
incumbency and signature of the officers of the Company executing any
Loan Document satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President
and the Secretary or any Assistant Secretary of the Company.
55
(e) Corporate Proceedings of Subsidiaries. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy
of the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of each Subsidiary of
the Company which is a party to a Loan Document authorizing (i) the
execution, delivery and performance of the Loan Documents to which it
is a party and (ii) the granting by it of the Liens created pursuant
to the Security Documents to which it is a party, certified by the
Secretary or an Assistant Secretary of each such Subsidiary as of the
Closing Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified,
revoked or rescinded.
(f) Subsidiary Incumbency Certificates. The Administrative
Agent shall have received, with a counterpart for each Lender, a
certificate of each Domestic Subsidiary of the Borrower which is a
party to a Loan Document, dated the Closing Date, as to the
incumbency and signature of the officers of such Subsidiaries
executing any Loan Document, satisfactory in form and substance to
the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of each such
Subsidiary.
(g) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete
copies of the certificate of incorporation and by-laws of each Loan
Party, certified as of the Closing Date as complete and correct
copies thereof by the Secretary or an Assistant Secretary of such
Loan Party.
(h) Fees. The Administrative Agent and the Lenders shall have
received all invoiced fees and expenses required to be paid on the
Closing Date including, but not limited to, the Amendment Fee and the
Up-Front Fee.
(i) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the following executed
legal opinions:
(i) the executed legal opinion of Michael C. Duban,
counsel to the Company and the other Loan Parties,
substantially in the form of Exhibit F-1; and
(ii) the executed legal opinion of counsel to the Foreign
Subsidiary Borrower, substantially in the form of Exhibit F-2;
each such legal opinion to cover such other matters incident to the
transactions contemplated by this Agreement and the other Loan
Documents as the Administrative Agent may reasonably require.
(j) Financial Statements. The Administrative Agent shall have
received, with a copy for each Lender, audited consolidated financial
statements of the Company and its
56
consolidated Subsidiaries for the two most recent fiscal years ended
prior to the Closing Date and unaudited consolidated financial
statements of the Company and its consolidated Subsidiaries,
reasonably satisfactory to the Lenders and certified by the chief
financial officer of the Company, for the three months ended December
31, 2000, all such financial statements, including the related
schedules and notes thereto, having been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as
approved by such accountants or chief financial officer, as the case
may be, and as disclosed therein).
(k) Projections. The Administrative Agent shall have received,
with a copy for each Lender, financial projections of the Company and
its Subsidiaries for the period from the Closing Date through
September 30, 2002.
(l) Pledged Stock; Stock Powers. The Administrative Agent shall
have received the certificates representing the shares of each New
Loan Party pledged pursuant to the Guarantee and Collateral
Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the
pledgor thereof.
(m) Actions to Perfect Liens. The Administrative Agent shall
have received evidence in form and substance satisfactory to it that
all filings, recordings, registrations and other actions, including,
without limitation, the filing of duly executed financing statements
on form UCC-1, necessary or, in the opinion of the Administrative
Agent, desirable to perfect the Liens created by the Security
Documents shall have been completed.
(n) Lien Searches. The Administrative Agent shall have received
the results of a recent search by a Person satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgment and
tax lien filings which may have been filed with respect to personal
property of each New Loan Party in each of the jurisdictions and
offices where assets of such New Loan Party are located or recorded,
and such search shall reveal no material liens on any of the assets
of such New Loan Party except for liens permitted by the Loan
Documents.
(o) Consents, Licenses and Approvals. (i) All governmental and
material third party approvals (including material landlords' and
other consents) necessary or advisable in connection with the
execution, delivery and performance of the Loan Documents and the
continuing operation of the business of the Company and its
Subsidiaries shall have been obtained and be in full force and
effect, and (ii) all applicable waiting periods shall have expired
without any action being taken or threatened by any competent
Governmental Authority which would restrain, prevent or otherwise
impose adverse conditions on the Company, any of its Subsidiaries.
(p) Designated Senior Indebtedness. (i) The Indebtedness under
this Agreement shall be designated by the Company as "Designated
Senior Indebtedness" pursuant to, and as defined under, the
Indenture, dated as of September 23, 1997, among the Company, as
issuer, and IBJ Whitehall Bank & Trust Company (formerly IBJ Schroder
Bank & Trust Company), as trustee, relating to the Company's 8 5/8%
Senior Subordinated Notes due 2007, and (ii) the Administrative Agent
shall have received a
57
reaffirmation of the Company satisfactory to the Administrative Agent
reaffirming such designation by the Company.
7.2. Conditions to Each Extension of Credit. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any
date (including, without limitation, the Closing Date), is subject to the
satisfaction of the following conditions precedent as of the date such
Extension of Credit is requested to be made:
(a) Representations and Warranties. Each of the representations
and warranties made by each of the Loan Parties in or pursuant to the
Loan Documents shall be true and correct in all material respects on
and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Extension of Credit requested to be made on such date.
Each Extension of Credit made to a Borrower hereunder shall constitute a
representation and warranty by such Borrower as of the date of such
Extension of Credit that the conditions contained in this subsection 7.2
have been satisfied.
7.3. Conditions to Initial Extension of Credit to the Foreign
Subsidiary Borrower. The agreement of each Lender to make its initial
Extension of Credit requested to be made by it to the Foreign Subsidiary
Borrower, in addition to the satisfaction with the conditions in
subsections 7.1 and 7.2, is subject to the satisfaction of the following
conditions precedent as of the date such initial Extension of Credit is
requested to be made:
(a) English Security Documents. The Administrative Agent shall
have received each English Security Document referred to in clause
(ii) of the definition thereof, executed and delivered by a duly
authorized officer of the Loan Party party thereto, with a
counterpart or a conformed copy for each Lender.
(b) Corporate Proceedings of the Foreign Subsidiary Borrower.
The Administrative Agent shall have received, with a counterpart for
each Lender, a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of Directors
of the Foreign Subsidiary Borrower authorizing (i) the execution,
delivery and performance of this Agreement and the other Loan
Documents to which it is a party, (ii) the borrowings contemplated
hereunder and (iii) the granting by it of the Liens created pursuant
to the Security Documents to which the Foreign Subsidiary Borrower is
a party, certified by the Secretary or an Assistant Secretary (or
like official) of the Foreign Subsidiary Borrower as of such initial
date, which certificate shall be in form and substance satisfactory
to the Administrative Agent and shall state that the resolutions
thereby certified have not been amended, modified, revoked or
rescinded.
(c) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal
opinion of a special English counsel to the Company and the other
Loan Parties, satisfactory to the Administrative Agent, covering
customary matters as the Administrative Agent may reasonably require.
58
(d) Actions to Perfect Liens. The Administrative Agent shall
have received evidence in form and substance satisfactory to it that
all filings, recordings, registrations and other actions necessary
or, in the opinion of the Administrative Agent, desirable to perfect
the Liens created by the English Security Documents shall have been
completed.
(e) Holland & Barrett Notes. The Administrative Agent shall
have received, for the account of each Lender that shall so request,
a promissory note of the Foreign Subsidiary Borrower reasonably
satisfactory to the Administrative Agent and substantially similar to
the form of Revolving Credit Note in Exhibit A-1 with appropriate
changes, executed by a duly authorized officer of the Foreign
Subsidiary Borrower.
7.4. Conditions to Each Extension of Credit under the New Revolving
Credit Commitments. The agreement of each New Revolving Credit Lender to
make any Extension of Credit under its New Revolving Credit Commitment on
or after the Closing Date requested to be made by it, in addition to the
satisfaction with the conditions in subsections 7.1 and 7.2, is subject to
the satisfaction of the following conditions precedent as of the date such
Extension of Credit is requested to be made (a "Drawdown Date"):
(a) Lien Searches. The Administrative Agent shall have received
the results of a recent search by a Person satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgment and
tax lien filings which may have been filed with respect to personal
property of each entity to be acquired by the Company in whole or in
part with the proceeds of such Extension of Credit, including, to the
extent relevant, Global Health and NatureSmart, in each of the
jurisdictions and offices where assets of each such entity are
located or recorded, and such search shall reveal no material liens
on any of the assets of each such entity except for liens permitted
by the Loan Documents or liens to be discharged on or prior to such
Drawdown Date pursuant to documentation satisfactory to the
Administrative Agent.
(b) Consents, Licenses and Approvals. (i) All governmental and
material third party approvals (including material landlords' and
other consents) necessary or advisable in connection with any
Acquisition to be financed in whole or in part with the proceeds of
such Extension of Credit, including, to the extent relevant, the
Global Health Acquisition and the NatureSmart Acquisition, shall have
been obtained and be in full force and effect, and (ii) all
applicable waiting periods shall have expired without any action
being taken or threatened by any competent Governmental Authority
which would restrain, prevent or otherwise impose adverse conditions
on any such Acquisition.
(c) Purchase Agreements. The Administrative Agent shall have
received copies of the executed purchase agreement entered into by
the Company in connection with any Acquisition being financed in
whole or in part with the proceeds of such Extension of Credit and
such agreement shall be reasonably satisfactory to the Administrative
Agent.
(d) Purchase Price. The aggregate amount of cash consideration
paid or to be paid for (i) the Global Health Acquisition shall not
exceed $60,000,000 and (ii) the NatureSmart Acquisition shall not
exceed $45,000,000. Notwithstanding the foregoing,
59
the sum of the aggregate amount of cash consideration paid or to be
paid for both the Global Health Acquisition and the NatureSmart
Acquisition shall not exceed $90,000,000.
(e) Fees. The Administrative Agent shall have received from the
Company any applicable Drawdown Fee.
SECTION 8. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments (or any of
them) remain in effect, any Loan or Reimbursement Obligation remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the
Company shall and shall cause each of its Subsidiaries to:
8.1. Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Company, copies of the
consolidated and consolidating balance sheets of the Company and its
consolidated Subsidiaries as at the end of such year and the related
consolidated and consolidating statements of income and retained
earnings and of cash flows for such year, setting forth in each case
in comparative form the figures as of the end of and for the previous
year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of
each fiscal year of the Company, the unaudited consolidated and
consolidating balance sheets of the Company and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated and consolidating statements of income and retained
earnings and of cash flows of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures as of the end of and for the
corresponding period in the previous year, certified by a Responsible
Officer of the Company as being fairly stated in all material
respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such accountants or officer, as the
case may be, and disclosed therein and except that interim statements may
exclude detailed footnote disclosure in accordance with standard practice).
8.2. Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 8.1(a), a certificate of the independent
certified public accountants reporting
60
on such financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or Event
of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 8.1(a) and 8.1(b), a certificate of a
Responsible Officer of the Company stating that, to the best of such
officer's knowledge, each Loan Party during such period has observed
or performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and the other Loan
Documents to be observed, performed or satisfied by it, and that such
officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate; and in the case of
financial statements referred to in subsections 8.1(a) and 8.1(b),
including calculations and information demonstrating in reasonable
detail compliance with the requirements of subsection 9.1 and
determining the Applicable Margins;
(c) not later than 90 days following the end of each fiscal
year of the Company, a copy of the projections by the Company of the
operating budget of the Company and its Subsidiaries for the
succeeding fiscal year, such projections to be accompanied by a
certificate of a Responsible Officer of the Company to the effect
that such projections have been prepared on the basis of sound
financial planning practice and that such officer has no reason to
believe they are incorrect or misleading in any material respect;
(d) within five Business Days after the same are filed, copies
of all financial statements and reports which the Company may make
to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority;
(e) concurrently with the delivery of the financial statements
referred to in subsections 8.1(a) and 8.1(b), to the extent not
included in the financial statements and reports referred to in
subsection 8.2(d), a management narrative report explaining all
significant variances from forecasts, projections and previous
results and all significant current developments in staffing,
marketing, sales and operations; and
(f) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
8.3. Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be,
all its obligations of whatever nature (including taxes), except where the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Company or its Subsidiaries,
as the case may be.
8.4. Maintenance of Existence. Preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in
the normal conduct of its business except as otherwise permitted pursuant
to subsection 9.5; and comply with all Contractual Obligations and
61
Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, be reasonably expected to have a Material
Adverse Effect.
8.5. Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in good working order and condition; maintain
with financially sound and reputable insurance companies insurance on all
its property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to each
Lender, upon written request, full information as to the insurance carried.
8.6. Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and,
upon prior written notice, permit representatives of any Lender to visit
and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties
and financial and other condition of the Company and its Subsidiaries with
officers and employees of the Company and its Subsidiaries and, in the
presence of an officer of the Company, with its independent certified
public accountants.
8.7. Notices. Promptly give notice to the Administrative Agent (who
shall promptly notify each Lender) of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Company or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have
a Material Adverse Effect;
(c) any litigation or proceeding (including without limitation
any notice of violation, alleged violation, liability or potential
liability under any Environmental Law) affecting the Company or any
of its Subsidiaries in which the amount involved is $500,000 or more
and not covered by insurance or in which injunctive or similar relief
is sought;
(d) the following events, as soon as possible and in any event
within 30 days after any Loan Party knows or has reason to know
thereof: (i) the occurrence or expected occurrence of any Reportable
Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the
PBGC or the Company or any of its Subsidiaries or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan; and
62
(e) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Company proposes
to take with respect thereto.
8.8. Environmental Laws. (a) Comply with, and ensure compliance by
all tenants and subtenants, if any, with, all applicable Environmental Laws
and obtain and comply in all respects with and maintain, and ensure that
all tenants and subtenants obtain and comply in all respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except to the extent
that any failures could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect or to result in the payment of a Material
Environmental Amount.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested
in good faith by appropriate proceedings and the pendency of such
proceedings could not be reasonably expected to have a Material Adverse
Effect.
8.9. Additional Subsidiaries. (a) With respect to any Domestic
Subsidiary created or acquired after the Closing Date by the Company
(including NatureSmart and any entity formed to acquire any assets in the
NatureSmart Acquisition or the Global Health Acquisition), promptly cause
such Subsidiary to become a party to the Guarantee and Collateral
Agreement, deliver to the Administrative Agent the certificates
representing the Capital Stock of such Subsidiary, together with undated
stock powers, executed in blank, securing the Obligations as described in
the Guarantee and Collateral Agreement and covering the types of assets
covered by the Guarantee and Collateral Agreement, take all required
actions to perfect the security interests created by the Guarantee and
Collateral Agreement in the assets of such Subsidiary and if requested by
the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described in the preceding clauses (i)
through (iii) which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(b) With respect to each direct Material Foreign Subsidiary of the
Company or any Domestic Subsidiary acquired or formed after the Closing
Date, promptly after the acquisition or formation thereof, execute and
deliver and cause each such Foreign Subsidiary to execute and deliver to
the Administrative Agent, in form and substance reasonably satisfactory to
the Administrative Agent, such documents and instruments (including,
without limitation, pledge agreements) and take such action (including,
without limitation, the delivery of stock certificates and instruments) as
the Administrative Agent may reasonably request in order to grant to the
Administrative Agent, for the ratable benefit of the Lenders, as collateral
security for the Obligations, a first priority perfected security interest
in 65% of the voting Capital Stock and 100% of the non-voting Capital Stock
of, or equivalent ownership interests in, such Foreign Subsidiary, along
with any warrants, options, or other rights to acquire the same, in all
cases to
63
the extent legally permissible and practicable and deliver to the
Administrative Agent such legal opinions as it shall reasonably request
with respect thereto.
(c) If requested by the Administrative Agent, grant in favor of the
Administrative Agent, for the benefit of the Lenders, Liens on any other
assets other than real property hereafter acquired by the Company or any
Domestic Subsidiary and on previously encumbered assets which become
unencumbered, to the extent such Liens are then permissible under
applicable law and pursuant to any agreements to which the Company or its
Subsidiaries are a party, pursuant to documentation in form and substance
satisfactory to the Administrative Agent.
(d) In connection with any Acquisition, to the extent not otherwise
provided for in this subsection 8.9, take all action necessary to assure
that security interests and Liens for the benefit of the Lenders are
granted and perfected in all material assets acquired in such Acquisition
(including assets of Subsidiaries acquired in such Acquisition).
SECTION 9. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments (or any of
them) remain in effect, any Loan or Reimbursement Obligation remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly:
9.1. Financial Condition Covenants.
(a) Permit at the end of each fiscal quarter of the Company a
Consolidated Fixed Charge Coverage Ratio of less than the ratio set forth
below opposite the period in which such date occurs:
Period Ratio
------ -----
<s> <c>
Closing Date - Thereafter 1.00
(b) Maintenance of Consolidated Indebtedness to Consolidated EBITDA
Ratio. Permit the ratio of (i) Consolidated Indebtedness on any date during
any test period set forth below to (ii) Consolidated EBITDA for the four
fiscal quarters most recently ended prior to such date, to be greater than
the amount set forth opposite such test period below:
Test Period Ratio
----------- -----
<s> <c>
Closing Date - September 29, 2002 2.75
September 30, 2002 - Thereafter 2.50
(c) Consolidated Net Worth. Permit Consolidated Net Worth on any date
during any test period set forth below to be less than the amount set forth
opposite such test period below:
64
Test Period Amount
----------- ------
<s> <c>
Closing Date through
September 29, 2001 $250,000,000
September 30, 2001 through
September 29, 2002 $280,000,000
September 30, 2002 through
September 29, 2003 $320,000,000
September 30, 2003 through
September 29, 2004 $365,000,000
September 30, 2004 and
Thereafter $410,000,000
9.2. Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of the Borrowers under this Agreement;
(b) existing Indebtedness of the Company listed on Schedule
9.2;
(c) Indebtedness of the Company to any Subsidiary of the
Company and of any Domestic Subsidiary to the Company or to any other
Subsidiary of the Company;
(d) Indebtedness under sale and leaseback transactions
permitted by subsection 9.12;
(e) Indebtedness of the Company under Hedge Agreements entered
into solely to hedge interest rate exposure and not for speculative
purposes;
(f) Indebtedness of the Company or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including obligations under Financing Leases and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (A) such
Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and
(B) the aggregate principal amount of Indebtedness permitted by this
paragraph (f), and the aggregate amount of sale-leaseback
transactions permitted under subsection 9.12 theretofore consummated,
shall not exceed $10,000,000 at any time outstanding;
(g) Indebtedness of any Person that becomes a Subsidiary after
the date hereof; provided that (A) such Indebtedness exists at the
time such Person becomes a
65
Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary and (B) the aggregate
principal amount of Indebtedness permitted by this paragraph (g)
shall not exceed $1,000,000 at any time outstanding;
(h) Indebtedness of any Foreign Subsidiaries, in addition to
Indebtedness permitted by paragraph (i), in an aggregate amount not
in excess of $1,000,000 at any time outstanding; and
(i) Indebtedness of any Foreign Subsidiary to any other Foreign
Subsidiary.
9.3. Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of such
Person in conformity with GAAP (or, in the case of Foreign
Subsidiaries, generally accepted accounting principles in effect from
time to time in their respective jurisdictions of incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount and which do not in any
case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the
business of such Person;
(f) Existing Liens listed on Schedule 9.3;
(g) Liens securing Indebtedness of the Borrower permitted by
subsection 9.2(f) incurred to finance the acquisition of fixed or
capital assets (whether pursuant to a loan, a Financing Lease or
otherwise), provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or
capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness, (iii)
the amount of Indebtedness secured thereby is not increased and (iv)
the principal amount of Indebtedness secured by any such Lien shall
at no time exceed the original purchase price of such property at the
time it was acquired;
66
(h) Liens on current assets of any Foreign Subsidiary securing
Indebtedness of such Foreign Subsidiary permitted under subsection
9.2(h);
(i) Liens (not otherwise permitted hereunder) which secure
obligations in aggregate amount at any time outstanding not exceeding
(as to the Company and all Subsidiaries), and on property with an
aggregate value not exceeding, $1,000,000; and
(j) Liens created pursuant to the Security Documents.
9.4. Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and
listed on Schedule 9.4;
(b) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $1,000,000 at any one time
outstanding;
(c) guarantees made in the ordinary course of its business by
the Company of obligations (other than Indebtedness) of any of its
Domestic Subsidiaries, which obligations are otherwise permitted
under this Agreement;
(d) the guarantee by the Company under this Agreement and
guarantee by the Domestic Subsidiaries under the Guarantee and
Collateral Agreement;
(e) guarantees of any Foreign Subsidiary of the obligations of
any other Foreign Subsidiary; and
(f) guarantees by the Company of obligations of Foreign
Subsidiaries in an aggregate amount not in excess of $1,000,000 at
any one time outstanding.
9.5. Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business, except:
(a) any Subsidiary of the Company may be merged or consolidated
with or into the Company (provided that the Company shall be the
continuing or surviving corporation) or with or into any one or more
wholly owned Subsidiaries of the Company (provided that if a Domestic
Subsidiary is a party to such transaction, such Domestic Subsidiary
shall be the continuing or surviving corporation); and
(b) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company or any other wholly owned
Domestic Subsidiary of the Company.
67
9.6. Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person
other than the Company or any wholly owned Domestic Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) as permitted by subsection 9.5(b); and
(d) the sale or other disposition of any other property at fair
market value for consideration not in excess of $1,000,000 in the
aggregate in any fiscal year.
9.7. Limitation on Dividends and Other Restricted Payments. Declare
or pay any dividend (other than dividends payable solely in common stock of
the Company) on, or make any payment on account of, or set apart assets for
a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any shares of any class of
Capital Stock of the Company or any Subsidiary or any warrants or options
to purchase any such Capital Stock, whether now or hereafter outstanding,
or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of the Company or
any Subsidiary thereof (such declarations, payments, setting apart,
purchases, redemptions, defeasances, retirements, acquisitions and
distributions being herein called "Restricted Payments") except (a) as
permitted by subsections 9.5 and 9.9 and (b) any Subsidiary may pay
dividends to the Company or any other Subsidiary.
9.8. Limitation on Capital Expenditures. Make any Capital
Expenditure except for Capital Expenditures by the Company and its
Subsidiaries in the ordinary course of business not exceeding, in the
aggregate during any fiscal year of the Company the amount set forth
opposite such fiscal year below:
Fiscal Year Amount
----------- ------
<s> <c>
2001 $42,500,000
2002 and each year thereafter $40,000,000
9.9. Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any
Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
68
(c) loans and advances to employees of the Company or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Company
and its Subsidiaries not to exceed $100,000 at any one time
outstanding;
(d) investments by the Company or its Subsidiaries in any
wholly-owned Subsidiary of the Company which has complied with the
conditions set forth in subsection 8.9(a) or any wholly-owned Foreign
Subsidiary which has complied with the conditions set forth in
subsection 8.9(b); provided that the aggregate amount of all such
advances, loans, investments, transfers or guarantees outstanding at
any time made to or on behalf of the Foreign Subsidiaries shall not
exceed $10,000,000;
(e) the Nutrition Warehouse Acquisition, the SDV Vitamins
Acquisition, the Global Health Acquisition, the NatureSmart
Acquisition and other Acquisitions; provided, (i) such Acquisitions
permitted pursuant to this paragraph (e) shall be non-hostile
acquisitions and (ii) the aggregate amount of investments (whether
cash, securities or other consideration) permitted each fiscal year
pursuant to this paragraph (e), except in the case of the Nutrition
Warehouse Acquisition, the SDV Vitamins Acquisition, the Global
Health Acquisition and the NatureSmart Acquisition, shall not exceed,
in the aggregate in any fiscal year, the sum of $10,000,000; and
(f) additional investments not to exceed $1,000,000 in the
aggregate while this Agreement is outstanding.
9.10. Limitation on Optional Payments and Modifications of Debt
Instruments. (a) Make any optional payment or prepayment on or redemption
or purchase of any Indebtedness (other than the Loans), (b) amend, modify
or change, or consent or agree to any amendment, modification or change to,
any of the terms of any Indebtedness (excluding the Loans) (other than any
such amendment, modification or change which would extend the maturity or
reduce the amount of any payment of principal thereof or which would reduce
the rate or extend the date for payment of interest thereon), or (c) amend,
modify or change the subordination provisions of any Subordinated Debt.
9.11. Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate
unless such transaction is (a) otherwise permitted under this Agreement and
(b) upon fair and reasonable terms no less favorable to the Company or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate.
9.12. Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Company or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Company or such Subsidiary to such Person or to any
other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of the Company or
such Subsidiary; provided, that such sale leaseback transactions in an
amount of, together with the aggregate principal amount of Indebtedness
permitted under subsection 9.2(f) then outstanding, up to $10,000,000 in
the
69
aggregate while this Agreement is in effect may be consummated by the
Company, provided that the Company will not mortgage any existing Real
Property (including the Gel-Cap Facility).
9.13. Limitation on Changes in Fiscal Year. Permit the fiscal year
of the Company to end on a day other than September 30.
9.14. Limitation on Negative Pledge Clauses. Enter into with any
Person any agreement, other than (a) this Agreement, (b) the Subordinated
Debt and (c) any industrial revenue bonds, purchase money mortgages or
Financing Leases permitted by this Agreement (in which cases, any
prohibition or limitation shall only be effective against the assets
financed thereby), which prohibits or limits the ability of the Company or
any of its Subsidiaries to create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired.
9.15. Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for the vitamins and
healthfood businesses.
SECTION 10. GUARANTEE
10.1 Guarantee. (a) The Company hereby absolutely, unconditionally
and irrevocably guarantees to the Administrative Agent, for the ratable
benefit of the Lenders and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by
the Foreign Subsidiary Borrower when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations owed by it (the "Foreign
Subsidiary Obligations").
(b) The Company further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel), which may be paid or incurred by the Administrative Agent or any
Lender in enforcing, or obtaining advice of counsel in respect of, any
rights with respect to, or collecting, any or all of the Foreign Subsidiary
Obligations and/or enforcing any rights with respect to, or collecting
against, the Company under this Section 10. This Section 10 shall remain in
full force and effect until (subject to reinstatement as provided in
subsection 10.5) the Foreign Subsidiary Obligations are paid in full and
the Commitments are terminated, notwithstanding that from time to time
prior thereto the Foreign Subsidiary Borrower may be free from any Foreign
Subsidiary Obligations.
(c) No payment or payments made by any Borrower or any other Person
or received or collected by the Administrative Agent or any Lender from any
Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time,
in reduction of or in payment of the Foreign Subsidiary Obligations shall
be deemed to modify, reduce, release or otherwise affect the liability of
the Company hereunder which shall, notwithstanding any such payment or
payments, remain liable hereunder for the Foreign Subsidiary Obligations
until (subject to reinstatement as provided in subsection 10.5) the Foreign
Subsidiary Obligations are paid in full and the Commitments are terminated.
(d) The Company agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Lender
on account of its liability
70
hereunder, it will notify the Administrative Agent and such Lender in
writing that such payment is made under this Section 10 for such purpose.
10.2. No Subrogation. Notwithstanding any payment or payments made
by the Company hereunder, or any set-off or application of funds of the
Company by the Administrative Agent or any Lender, the Company shall not be
entitled to be subrogated to any of the rights of the Administrative Agent
or any Lender against the Foreign Subsidiary Borrower or against any
collateral security or guarantee or right of offset held by the
Administrative Agent or any Lender for the payment of the Foreign
Subsidiary Obligations, nor shall the Company seek or be entitled to seek
any contribution or reimbursement from the Foreign Subsidiary Borrower in
respect of payments made by the Company hereunder, until all amounts owing
to the Administrative Agent and the Lenders by the Foreign Subsidiary
Borrower on account of the Foreign Subsidiary Obligations are paid in full
and the Commitments are terminated. If any amount shall be paid to the
Company on account of such subrogation rights at any time when all of the
Foreign Subsidiary Obligations shall not have been paid in full, such
amount shall be held by the Company in trust for the Administrative Agent
and the Lenders, segregated from other funds of the Company, and shall,
forthwith upon receipt by the Company, be turned over to the Administrative
Agent in the exact form received by the Company (duly indorsed by the
Company to the Administrative Agent, if required), to be applied against
the Foreign Subsidiary Obligations, whether matured or unmatured, in such
order as the Administrative Agent may determine. The provisions of this
paragraph shall be effective notwithstanding the termination of this
Agreement and the payment in full of the Foreign Subsidiary Obligations and
the termination of the Commitments.
10.3. Amendments, etc. with respect to the Foreign Subsidiary
Obligations; Waiver of Rights. The Company shall remain obligated
hereunder notwithstanding that, without any reservation of rights against
the Company, and without notice to or further assent by the Company, any
demand for payment of any of the Foreign Subsidiary Obligations made by the
Administrative Agent or any Lender may be rescinded by the Administrative
Agent or such Lender, and any of the Foreign Subsidiary Obligations
continued, and such Obligations, or the liability of any other party upon
or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole
or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or
any Lender, and any Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, in accordance with the provisions thereof
as the Administrative Agent (or the requisite Lenders, as the case may be)
may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent
or any Lender for the payment of the Foreign Subsidiary Obligations may be
sold, exchanged, waived, surrendered or released. None of the
Administrative Agent or any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for
the Foreign Subsidiary Obligations or for this Agreement or any property
subject thereto. When making any demand hereunder against the Company, the
Administrative Agent or any Lender may, but shall be under no obligation
to, make a similar demand on the Foreign
71
Subsidiary Borrower or any other guarantor, and any failure by the
Administrative Agent or any Lender to make any such demand or to collect
any payments from the Foreign Subsidiary Borrower or any such other
guarantor or any release of the Foreign Subsidiary Borrower or such other
guarantor shall not relieve the Company of its obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express
or implied, or as a matter of law, of the Administrative Agent or any
Lender against the Company. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
10.4. Guarantee Absolute, Irrevocable and Unconditional. The
Company waives any and all notice of the creation, renewal, extension or
accrual of any of the Foreign Subsidiary Obligations and notice of or proof
of reliance by the Administrative Agent or any Lender upon this Agreement
or acceptance of this Agreement; the Foreign Subsidiary Obligations, and
any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings between the Foreign Subsidiary Borrower and the
Company, on the one hand, and the Administrative Agent and the Lenders, on
the other, shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Agreement. The Company waives diligence,
presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Foreign Subsidiary Borrower and the Company with
respect to the Foreign Subsidiary Obligations. This Section 10 shall be
construed as a continuing, absolute, irrevocable and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of this Agreement, any other Loan Document, any of the
Foreign Subsidiary Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time
to time held by the Administrative Agent or any Lender, (b) any defense,
set-off or counterclaim (other than a defense of payment or performance)
which may at any time be available to or be asserted by the Company or any
other Loan Party against the Administrative Agent or any Lender, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of
the Foreign Subsidiary Borrower or the Company) which constitutes, or might
be construed to constitute, an equitable or legal discharge of the Foreign
Subsidiary Borrower for the Foreign Subsidiary Obligations, or of the
Company under this Section 10, in bankruptcy or in any other instance. When
pursuing its rights and remedies hereunder against the Company, the
Administrative Agent and any Lender may, but shall be under no obligation
to, pursue such rights and remedies as it may have against the Foreign
Subsidiary Borrower or any other Person or against any collateral security
or guarantee for the Foreign Subsidiary Obligations or any right of offset
with respect thereto, and any failure by the Administrative Agent or any
Lender to pursue such other rights or remedies or to collect any payments
from the Foreign Subsidiary Borrower or any such other Person or to realize
upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Foreign Subsidiary Borrower or any
such other Person or of any such collateral security, guarantee or right of
offset, shall not relieve the Company of any liability hereunder, and shall
not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent or any Lender
against the Company. This Section 10 shall remain in full force and effect
and be binding in accordance with and to the extent of its terms upon the
Company and its successors and assigns, and shall inure to the benefit of
the Administrative Agent and the Lenders, and their respective successors,
indorsees, transferees and assigns, until (subject to reinstatement as
provided in subsection 10.5) all the Foreign Subsidiary Obligations and the
obligations of the Company under this Agreement shall have been satisfied
by payment in full and the
72
Commitments shall be terminated, notwithstanding that from time to time
during the term of this Agreement the Foreign Subsidiary Borrower may be
free from any Foreign Subsidiary Obligations.
10.5. Reinstatement. This Section 10 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Foreign Subsidiary Obligations is rescinded
or must otherwise be restored or returned by the Administrative Agent or
any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Borrower or upon or as a result of the appointment of
a receiver, intervenor or conservator of, or trustee or similar officer
for, any Borrower or any substantial part of its property, or otherwise,
all as though such payments had not been made.
10.6. Payments. The Company hereby agrees that all payments
required to be made by it hereunder will be made to the Administrative
Agent without set-off or counterclaim in accordance with the terms of the
Foreign Subsidiary Obligations, including, without limitation, in the
currency in which payment is due.
SECTION 11. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) Any Borrower shall fail to pay (i) any principal of any
Loans or any Reimbursement Obligations when due (whether at the
stated maturity, by acceleration or otherwise) in accordance with the
terms thereof or hereof or (ii) any interest on any Loans, or any fee
or other amount payable hereunder, within five days after any such
interest, fee or other amount becomes due in accordance with the
terms hereof; or
(b) Any representation or warranty made or deemed made by the
Company or any other Loan Party herein or in any other Loan Document
or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with
this Agreement or any other Loan Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed
made or furnished; or
(c) The Company or any other Loan Party shall default in the
observance or performance of any negative covenant contained in
Section 9 or in any Security Document to which it is a party; or
(d) The Company or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document other than as provided in (a)
through (c) above, and such default shall continue unremedied for a
period of 30 days; or
(e) Any Loan Document shall cease, for any reason, to be in
full force and effect, or the Company or any other Loan Party shall
so assert; or any security interest created by any of the Security
Documents shall cease to be enforceable and of the same effect and
priority purported to be created thereby; or
73
(f) The subordination provisions contained in any instrument
pursuant to which the Subordinated Debt was created or in any
instrument evidencing such Subordinated Debt shall cease, for any
reason, to be in full force and effect or enforceable in accordance
with their terms; or
(g) The Company or any of its Subsidiaries shall (i) default in
any payment of principal of or interest on any Indebtedness (other
than Indebtedness under this Agreement), in the payment of any
Guarantee Obligation or in the payment of any Hedge Agreement
Obligation, where, in any case or in the aggregate, the principal
amount thereof then outstanding exceeds $1,000,000, beyond the period
of grace (not to exceed 30 days), if any, provided in the instrument
or agreement under which such Indebtedness, Guarantee Obligation or
Hedge Agreement Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition
relating to any such Indebtedness, Guarantee Obligation or Hedge
Agreement Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or Hedge Agreement Obligation or, beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation
to become payable; or
(h) (i) The Company, any Domestic Subsidiary or any Material
Foreign Subsidiary shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets, or
the Company, any Domestic Subsidiary or any Material Foreign
Subsidiary shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Company, any
Domestic Subsidiary or any Material Foreign Subsidiary any case,
proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there
shall be commenced against the Company, any Domestic Subsidiary or
any Material Foreign Subsidiary any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Company,
any Domestic Subsidiary or any Material Foreign Subsidiary shall take
any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) the Company, any Domestic Subsidiary or
any Material Foreign Subsidiary shall generally
74
not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or
(i) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Single Employer Plan, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed (or a trustee shall be appointed) to administer, or
to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Company or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Majority Lenders is likely to, incur
any liability in connection with a withdrawal from, or the Insolvency
or Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist, with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could
subject the Company or any of its Subsidiaries to any tax, penalty or
other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole; or
(j) One or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $1,000,000 or
more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
(k) (i) Any Person or "group" (within the meaning of Section
13(d) or 15(d) of the Exchange Act), other than any Person or group
owning 20% or more of the Capital Stock of the Company on the date
hereof (A) shall have acquired, combined with previous holdings,
beneficial ownership of 25% or more of any outstanding class of
capital stock of the Company having ordinary voting power in the
election of directors or (B) shall obtain the power (whether or not
exercised) to elect a majority of the Company's directors or (ii) the
Board of Directors of the Company shall not consist of a majority of
Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (h) above with respect to the
Company or if such event is an Event of Default specified in clause (g)
above resulting from the acceleration of the Subordinated Debt
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement (including, without limitation, all Reimbursement
Obligations, regardless of whether or not such Reimbursement Obligations
are then due and payable) shall immediately become due and payable, and (B)
if such event is any other Event of Default, any of the following actions
may be taken: (i) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Company declare the
75
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; (ii) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the direction of the Majority Lenders,
the Administrative Agent shall, by notice of default to the Company,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including all amounts payable in
respect of Letters of Credit whether or not the beneficiaries thereof shall
have presented the drafts and other documents required thereunder) and the
Notes to be due and payable forthwith, whereupon the same shall immediately
become due and payable and (iii) the Administrative Agent may, and upon the
direction of the Majority Lenders shall, exercise any and all remedies and
other rights provided pursuant to this Agreement and/or the other Loan
Documents.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, the Company shall at such
time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of
such Letters of Credit. The Company hereby grants to the Administrative
Agent, for the benefit of the Issuing Lender and the Participating Lenders,
a security interest in such cash collateral to secure all obligations of
the Company under this Agreement and the other Loan Documents. Amounts held
in such cash collateral account shall be applied by the Administrative
Agent to the payment of drafts drawn under such Letters of Credit, and the
unused portion thereof after all such Letters of Credit shall have expired
or been fully drawn upon, if any, shall be applied to repay other
obligations of the Company hereunder and under the Notes. After all such
Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other
obligations of the Company hereunder and under the Notes shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Company. The Company shall execute and deliver to the
Administrative Agent, for the account of the Issuing Lender and the
Participating Lenders, such further documents and instruments as the
Administrative Agent may request to evidence the creation and perfection of
the within security interest in such cash collateral account.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly
waived.
SECTION 12. THE ADMINISTRATIVE AGENT AND THE ARRANGER
12.1. Appointment. Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action
on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise
exist against the Administrative Agent.
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12.2. Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
12.3. Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this Agreement or
any other Loan Document (except for its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties
made by any Borrower or any officer thereof contained in this Agreement or
any other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document
or for any failure of any Borrower to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to
any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or
any other Loan Document, or to inspect the properties, books or records of
any Borrower.
12.4. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation,
counsel to the Company), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have
been filed with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Lenders (or, to the extent provided
in subsection 13.1, all of the Lenders) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of
the Majority Lenders (or, to the extent provided in subsection 13.1, all of
the Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
12.5. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Administrative Agent has received
notice from a Lender or any of the Borrowers referring to this Agreement,
describing such Default or Event of Default and stating that such notice is
a "notice of default". In the event that the Administrative Agent receives
such a notice, the Administrative
77
Agent shall give notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Majority Lenders; provided that unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event
of Default as it shall deem advisable in the best interests of the Lenders.
12.6. Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that none of the Administrative Agent or any
of its respective officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to it and that no
act by the Administrative Agent hereafter taken, including any review of
the affairs of the Borrowers, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently
and without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the
Borrowers and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent, the
Arranger or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the
Borrowers. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrowers which may come
into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
12.7. Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do
so), ratably according to their respective Total Loan Percentages in effect
on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and
the Loans shall have been paid in full, ratably in accordance with their
Total Loan Percentages immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
which may at any time (including, without limitation, at any time following
the payment of the Loans) be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of the
Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits,
78
costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
12.8. Administrative Agent in Its Individual Capacity. The entity
which is the Administrative Agent and its Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with the
Borrowers as though the entity which is the Administrative Agent were not
the Administrative Agent hereunder and under the other Loan Documents. With
respect to the Loans made by it, the entity which is the Administrative
Agent shall have the same rights and powers under this Agreement and the
other Loan Documents as any Lender and may exercise the same as though it
were not the Administrative Agent, and the terms "Lender" and "Lenders"
shall include the entity which is the Administrative Agent in its
individual capacity.
12.9. Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Majority Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Company, such approval not to be
unreasonably withheld, whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights,
powers and duties as Administrative Agent shall be terminated, without any
other or further act or deed on the part of such former Administrative
Agent or any of the parties to this Agreement or any holders of the Loans.
After any retiring Administrative Agent's resignation as Administrative
Agent, the provisions of this Section 12 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement and the other Loan Documents.
12.10. Issuing Lender and Collateral Agent. Each Lender hereby
acknowledges that the provisions of this Section 12 shall apply to the
Issuing Lender, in its capacity as issuer of any Letter of Credit, and the
Collateral Agent, in its capacity under the other Loan Documents, in the
same manner as such provisions are expressly stated to apply to the
Administrative Agent.
SECTION 13. MISCELLANEOUS
13.1. Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof, may be amended,
supplemented, waived or modified except in accordance with the provisions
of this subsection 13.1. The Majority Lenders may, or, with the written
consent of the Majority Lenders, the Administrative Agent may, from time to
time, (i) enter into with the applicable Loan Parties written amendments,
supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights or obligations of the
Lenders or of the Borrowers hereunder or thereunder or (ii) waive at the
Company's request, on such terms and conditions as the Majority Lenders or
the Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its
79
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall:
(A) reduce the amount or extend the scheduled date of maturity
of any Loan, or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's
Commitments, in each case without the consent of each Lender affected
thereby;
(B) amend, supplement, modify or waive any provision of this
subsection 13.1 or reduce the percentages specified in the definition
of "Majority Lenders" or consent to the assignment or transfer by any
Loan Party of any of its rights and obligations under this Agreement
and the other Loan Documents, in each case without the consent of all
the Lenders;
(C) amend, supplement, modify or waive any provision of Section
12 or any other provision of this Agreement governing the rights or
obligations of the Administrative Agent without the consent of the
then Administrative Agent;
(D) extend the expiring date on any Letter of Credit beyond the
Revolving Credit Termination Date without the consent of each Lender;
(E) release the guarantee contained in Section 10 or, except as
permitted under subsection 9.6, the Guarantee and Collateral
Agreement or all or a substantial portion of the Collateral under,
and as defined in, the Security Documents or any Guarantor under, and
as defined in, the Guarantee and Collateral Agreement, without the
consent of each Lender; or
(F) increase the Aggregate Revolving Credit Commitments, the
Aggregate Term Loan Commitments or the Aggregate New Revolving Credit
Commitments, in each case without the consent of all the Lenders.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 13.1 shall apply to each of the Lenders and shall be binding
upon the Borrowers, the applicable other Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans and the
Reimbursement Obligations. In the case of any waiver, the Borrowers, the
Lenders and the Administrative Agent shall be restored to their former
positions and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other
Default or Event of Default, or impair any right consequent thereon.
13.2. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made (a) in the case of delivery
by hand, when delivered, (b) in the case of delivery by mail, three days
after being deposited in the mails, postage prepaid, or (c) in the case of
delivery by facsimile transmission, when sent and receipt has been
confirmed, addressed as follows in the case of the
80
Borrowers, the Issuing Lender and the Administrative Agent, and as set
forth in Schedule I in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties
hereto:
The Borrowers: c/o NBTY, Inc.
90 Orville Drive
Bohemia, New York 11716-2510
Attention: Harvey Kamil
Fax: (631) 567-7148
The Administrative
Agent, the Issuing
Lender or Swing Line
Lender: The Chase Manhattan Bank
Loan & Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Jesus Sang
Fax: (212) 552-5650
With a copy to: The Chase Manhattan Bank
395 North Service Road, Suite 302
Melville, New York 11747
Attention: Barbara Bertschi
Fax: (631) 755-5184
provided that any notice, request or demand to or upon the Administrative
Agent, the Issuing Lender or the Lenders pursuant to subsection 2.2, 2.4,
2.5, 2.7, 2.9, 2.10, 2.13, 3.2, 4.2 or 5.2 shall not be effective until
received.
13.3. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
13.4. Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents
and in any document, certificate or statement delivered pursuant hereto or
in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans hereunder until all obligations
hereunder and under the other Loan Documents have been paid in full and the
Commitments hereunder have been terminated.
13.5. Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses
81
incurred in connection with the development, preparation, syndication and
execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration
of the transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses incurred during the
continuance of any Default or Event of Default in connection with the
enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any such other documents, including, without limitation,
the fees and disbursements of counsel to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold harmless each Lender
and the Administrative Agent from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of,
or consummation or administration of any of the transactions contemplated
by, or any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Agreement, the other Loan Documents
and any such other documents, and (d) to pay, indemnify, and hold harmless
each Lender and the Administrative Agent from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and related
documents or the use of the proceeds of the Loans, including, without
limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to
the operations of the Company, any of its Subsidiaries or any of the
Properties (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), provided, that the Company shall have no
obligation hereunder to the Administrative Agent or any Lender with respect
to indemnified liabilities solely arising from the gross negligence or
willful misconduct of the Administrative Agent or any such Lender. The
agreements in this subsection shall survive the termination of this
Agreement and the repayment of the Loans and all other amounts payable
hereunder.
13.6. Successors and Assigns; Participation and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Administrative Agent and their respective
successors and assigns, except that the Borrowers may not assign or
transfer any of their rights or obligations under this Agreement without
the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
or lending business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Commitment of such Lender
or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement
to the other parties to this Agreement shall remain unchanged, such Lender
shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this
Agreement and the other Loan Documents, and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such
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Lender's rights and obligations under this Agreement and the other Loan
Documents. No Participant shall have any right to vote on, consent to or
approve any matter relating to this Agreement or any other Loan Document
except for those specified in clauses (A), (B), (D) or (E) of the proviso
to the second sentence of subsection 13.1. Each Borrower agrees that if
amounts outstanding under this Agreement are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement
to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to
have agreed to share with the Lenders the proceeds thereof as provided in
subsection 13.7(a) as fully as if it were a Lender hereunder. Each Borrower
also agrees that each Participant shall be entitled to the benefits of
subsections 5.9, 5.10, 5.11 and 5.12 with respect to its participation in
the Commitments and the Loans outstanding from time to time as if it were a
Lender; provided that, in the case of subsection 5.12, such Participant
shall have complied with the requirements of said subsection and provided,
further, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such
transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
or lending business and in accordance with applicable law, at any time and
from time to time assign to any Lender or any affiliate thereof or to an
additional bank or financial institution (an "Assignee"), in the case of
any assignment relating to Loans to such an additional bank or financial
institution with the consent of the Company and the Administrative Agent
(which consents in each case shall not be unreasonably withheld), all or
any part of its rights and obligations under this Agreement and the other
Loan Documents pursuant to an Assignment and Acceptance, substantially in
the form of Exhibit E, executed by such Assignee, such assigning Lender
(and, to the extent required, by the Company and the Administrative Agent)
and delivered to the Administrative Agent for its acceptance and recording
in the Register; provided that, in the case of any partial assignment of
its rights and obligations, the Assignee's Revolving Credit Commitment
Percentage shall equal its Term Loan Percentage after giving effect to such
assignment, and provided, further, in the case of any such assignment to an
additional bank or financial institution, the sum of the aggregate
principal amount of the Loans and the Letter of Credit Obligations and the
aggregate amount of the Available Revolving Credit Commitment, Available
Term Loan Commitment and Available New Revolving Credit Commitment being
assigned and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal
amount of the Loans and the Letter of Credit Obligations and the aggregate
amount of the Available Revolving Credit Commitment, Available Term Loan
Commitment and Available New Revolving Credit Commitment remaining with the
assigning Lender, are each not less than $5,000,000. Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with Commitments as set forth therein, and (y) the assigning
Lender thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this
83
Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this subsection and subsection 13.6(e),
the consent of the Company shall not be required, and, unless requested by
the Assignee and/or the assigning Lender, new Notes shall not be required
to be executed and delivered by the Company, for any assignment which
occurs at any time when any of the events described in clause (h) of
Section 11 shall have occurred and be continuing.
(d) The Administrative Agent shall, on behalf of the Company,
maintain at the address of the Administrative Agent referred to in
subsection 13.2 a copy of each Assignment and Acceptance delivered to it
and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amounts of
the Loans owing to, each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder or under any Note as the owner thereof for all
purposes of this Agreement and the other Loan Documents, notwithstanding
any notice to the contrary. Any assignment of any Loan or other obligation
hereunder or under any Note shall be effective only upon appropriate
entries with respect thereto being made in the Register. The Register shall
be available for inspection by the Company or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of any assignment
relating to Revolving Credit Loans, New Revolving Credit Loans and Term
Loans to an Assignee that is not then a Lender or an affiliate thereof, by
the Company and the Administrative Agent, to the extent required by
subsection 13.6(c)) together with payment to the Administrative Agent by
the assigning Lender or Assignee of a registration and processing fee of
$3,500 (except that no such registration and processing fee shall be
payable in the case of an Assignee which is already a Lender or is an
Affiliate of a Lender), the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register
and give notice of such acceptance and recordation to the Lenders and the
Company.
(f) The Company authorizes each Lender to disclose to any Participant
or Assignee (each, a "Transferee") and any prospective Transferee, subject
to the provisions of subsection 13.17, any and all financial information in
such Lender's possession concerning the Company and its Affiliates which
has been delivered to such Lender by or on behalf of the Company pursuant
to this Agreement or which has been delivered to such Lender by or on
behalf of the Company in connection with such Lender's credit evaluation of
the Company and its Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and
Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
84
(h) If, pursuant to this subsection 13.6, any interest in this
Agreement or any Note or Letter of Credit is transferred to any Transferee
which is not incorporated or organized under the laws of the United States
of America or a state thereof, the assigning Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, (i) to
represent to the assigning Lender (for the benefit of the assigning Lender,
the Administrative Agent and the Borrowers) that under applicable law and
treaties no Non-Excluded Taxes will be required to be withheld by the
Administrative Agent, any Borrower or the assigning Lender with respect to
any payments to be made to such Transferee in respect of the Loans or
Participating Interests, (ii) to furnish to the assigning Lender, the
Administrative Agent and the Company, such forms and certificates required
to be furnished pursuant to subsection 5.12(b) and (iii) to agree (for the
benefit of the assigning Lender, the Administrative Agent and the
Borrowers) to be bound by the provisions of subsections 5.12(b) and (c).
13.7. Adjustments; Set-off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Loans
owing to it by any Borrower, or interest thereon, or receive any collateral
in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in clause (h)
of Section 11 or otherwise, except for payments pursuant to the operation
of subsections 5.14(b) or 13.6), in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans owing to it by such Borrower, or interest
thereon, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other
Lender's Loan owing to it by such Borrower, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such Benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Company,
any such notice being expressly waived by the Company to the extent
permitted by applicable law, upon any amount becoming due and payable by
the Company hereunder (whether at the stated maturity, by acceleration or
otherwise) to set off and appropriate and apply against such amount any and
all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any
branch or agency thereof to or for the credit or the account of the
Company. Each Lender agrees promptly to notify the Company and the
Administrative Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
13.8. Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement 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. A set
of the copies of this Agreement signed by all the parties shall be
delivered to the Company and the Administrative Agent.
85
13.9. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
13.10. Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrowers, the Administrative Agent
and the Lenders with respect to the subject matter hereof and thereof, and
there are no promises, undertakings, representations or warranties by the
Borrowers, the Administrative Agent or any Lender relative to the subject
matter hereof or thereof not expressly set forth or referred to herein or
in the other Loan Documents.
13.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13.12. Submission to Jurisdiction; Waivers. (a) Each Borrower
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Loan Document to
which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address set forth in subsection 13.2
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction.
(b) The Foreign Subsidiary Borrower hereby irrevocably appoints the
Company as its agent for service of process in any proceeding referred to
in subsection 13.12(a) and agrees that service of process in any such
proceeding may be made by mailing or delivering a copy thereof to it care
of Company at its address for notice set forth in subsection 13.2.
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13.13. Acknowledgements. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan
Documents;
(b) none of the Administrative Agent or any Lender has any
fiduciary relationship with or duty to such Borrower arising out of
or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Administrative Agents and
the Lenders, on the one hand, and the Borrowers, on the other hand,
in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrowers and the
Lenders.
13.14. WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.15. Power of Attorney. The Foreign Subsidiary Borrower hereby
grants to Company an irrevocable power of attorney to act as its attorney-
in-fact with regard to matters relating to this Agreement and each other
Loan Document, including, without limitation, execution and delivery of any
amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of
process in connection herewith or therewith. The Foreign Subsidiary
Borrower hereby explicitly acknowledges that the each of the Administrative
Agent and each Lender has executed and delivered this Agreement and each
other Loan Document to which it is a party, and has performed its
obligations under this Agreement and each other Loan Document to which it
is a party, in reliance upon the irrevocable grant of such power of
attorney pursuant to this subsection. The power of attorney granted by the
Foreign Subsidiary Borrower hereunder is coupled with an interest.
13.16. Judgment. (a) If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due hereunder in one currency
into another currency, the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency in the city in
which it normally conducts its foreign exchange operation for the first
currency on the Business Day preceding the day on which final judgment is
given.
(b) The obligation of each Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency
(the "Judgment Currency") other than that in which such sum is denominated
in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the
Business Day following receipt by such Lender of any sum adjudged to be so
due in the
87
Judgment Currency such Lender may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency; if
the amount of Agreement Currency so purchased is less than the sum
originally due to such Lender in the Agreement Currency, such Borrower
agrees notwithstanding any such judgment to indemnify such Lender against
such loss, and if the amount of the Agreement Currency so purchased exceeds
the sum originally due to any Lender, such Lender agrees to remit to such
Borrower such excess. The obligation of each Borrower under this subsection
13.16 shall survive the termination of this Agreement and repayment of the
Loans and all other amounts payable hereunder. A certificate as to any
amounts payable pursuant to this subsection 13.16, submitted by a Lender to
a Borrower, shall be conclusive in the absence of manifest error.
13.17. Confidentiality. Each Lender agrees to take normal and
reasonable precautions to maintain the confidentiality of information
designated in writing as confidential and provided to it by the Company or
any Subsidiary in connection with this Agreement; provided, however, that
any Lender may disclose such information (a) at the request of any
regulatory authority having supervisory jurisdiction over it or in
connection with an examination of such Lender by any such authority, (b)
pursuant to subpoena or other court process, (c) when required to do so in
accordance with the provisions of any applicable law, (d) at the direction
of any other Governmental Authority, (e) to such Lender's Affiliates,
independent auditors and other professional advisors, (f) which has become
generally available to the public, other than as a result of a disclosure
by such Lender or agent of such Lender or a disclosure known to such Lender
or agent of such Lender to have been made by any person or entity to which
such Lender or agent has delivered such confidential information, (g) which
becomes available to such Lender from a source other than the Company or
any Subsidiary (provided that such source is not known to such Lender to be
bound by a duty of confidentiality to the Company or any Subsidiary) or (h)
to any Transferee or potential Transferee; provided that such Transferee
agrees in writing to comply with the provisions of this subsection 13.17.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
NBTY, INC.
By: /s/ Harvey Kamil
--------------------------------
Harvey Kamil
Executive Vice President
HOLLAND & BARRETT HOLDINGS LIMITED
By: /s/ Harvey Kamil
--------------------------------
Harvey Kamil
Executive Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a
Lender, and as Swing Line Lender,
and as Issuing Lender
By: /s/ Barbara G. Bertschi
--------------------------------
Barbara G. Bertschi
Vice President
THE DIME SAVINGS BANK OF NEW YORK,
FSB
By: /s/ Brian Stone
--------------------------------
Brian Stone
Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Philip N. Adsetts
--------------------------------
Philip N. Adsetts
Director
EUROPEAN AMERICAN BANK
By: /s/ Stephen Kelly
--------------------------------
Stephen Kelly
Vice President
THE BANK OF NEW YORK
By: /s/ Gerard Waters
--------------------------------
Gerard Waters
Vice President
FLEET NATIONAL BANK
By: /s/ Alice Adelberg
--------------------------------
Alice Adelberg
Vice President
MELLON BANK, N.A.
By: /s/ Peter A Dorbas
--------------------------------
Peter A. Dorbas
Senior Vice President
HSBC BANK USA
By: /s/ Gary Sarro
--------------------------------
Gary Sarro
Vice President
ISRAEL DISCOUNT BANK
By: /s/ Alan Lefkowitz
--------------------------------
Alan Lefkowitz
First Vice President
By: /s/ Gary Harkins
--------------------------------
Gary Harkins
Vice President