SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.8
THIS SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated as of
March 5, 2007, is among General Nutrition Centers, Inc., a Delaware corporation (the
“Company”), the Guarantors (the “Guarantors”) under the Indenture referred to
below, and U.S. Bank National Association, as trustee under the Indenture referred to below (the
“Trustee”).
WITNESSETH:
WHEREAS the Company has heretofore executed and delivered to the Trustee an Indenture (as such
may be amended from time to time, the “Indenture”), dated as of December 5, 2003, providing
for the issuance of its 81/2% Senior Subordinated Notes due 2010 (the “Notes”);
WHEREAS Section 9.02 of the Indenture provides, among other things, that with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding
Notes (the “Requisite Consents”), the Company and the Guarantors, when authorized by
resolutions of their respective Boards of Directors, may amend, supplement or waive certain terms
and provisions of the Indenture or enter into an indenture supplemental thereto for the purposes of
adding provisions to or changing or eliminating provisions of the Indenture or the Notes or of
modifying the rights of the registered holders of the Notes (each a “Holder” and,
collectively, the “Holders”) under the Indenture and the Notes;
WHEREAS the Company has offered to purchase for cash, upon the terms and subject to the
conditions set forth in that certain Offer to Purchase dated February 15, 2007 (the “Offer to
Purchase”), any and all of the outstanding Notes (the “Offer”);
WHEREAS the Offer to Purchase also constitutes a solicitation of consents (the “Consent
Solicitation”) from the Holders to certain amendments to the Indenture (the “Proposed
Amendments”) to eliminate substantially all of the restrictive covenants and certain events of
default and certain other provisions of the Indenture, as more particularly described in this
Second Supplemental Indenture;
WHEREAS the Company has obtained the Requisite Consents to the Proposed Amendments pursuant to
the Consent Solicitation as of March 1, 2007; and
WHEREAS pursuant to Section 9.02 of the Indenture, the Trustee, the Company and the Guarantors
are authorized to execute and deliver this Second Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
ARTICLE I
AMENDMENTS TO INDENTURE
Section 1.01. Definitions Generally. For all purposes of this Second Supplemental
Indenture, except as otherwise herein expressly provided or unless the context otherwise requires:
(a) the terms and expressions used herein shall have the same meanings as corresponding terms
and expressions used in the Indenture; and (b) the words “herein,” “hereof” and “hereby” and other
words of similar import used in this Second Supplemental Indenture refer to this Second
Supplemental Indenture as a whole and not to any particular section hereof.
Section 1.02. Deleted Sections. The following sections of the Indenture are hereby
deleted in their entirety, effective as of the Acceptance Date (as hereinafter defined):
| (a) | Section 4.03. Reports; | ||
| (b) | Section 4.04. Compliance Certificate; | ||
| (c) | Section 4.05. Taxes; | ||
| (d) | Section 4.06. Stay, Extension and Usury Laws; | ||
| (e) | Section 4.07. Limitation on Restricted Payments; | ||
| (f) | Section 4.08. Limitation on Restrictions on Distributions from Restricted Subsidiaries; | ||
| (g) | Section 4.09. Limitation on Indebtedness; | ||
| (h) | Section 4.10. Limitation on Asset Dispositions; | ||
| (i) | Section 4.11. Limitation on Transactions with Affiliates; | ||
| (j) | Section 4.12. Limitation on Liens; | ||
| (k) | Section 4.13. Limitation on the Sale or Issuance of Preferred Stock of Restricted Subsidiaries; | ||
| (l) | Section 4.14. Corporate Existence; | ||
| (m) | Section 4.15. Offer to Repurchase Upon Change of Control; | ||
| (n) | Section 4.16. Limitation on Layering; | ||
| (o) | Section 4.17. Additional Note Guarantees; and | ||
| (p) | Section 4.18. Designation of Unrestricted Subsidiaries. |
Section 1.03. Section 5.01 of the Indenture. Section 5.01 of the Indenture is hereby
amended, effective as of the Acceptance Date, to read in its entirety as follows:
Section 5.01. Merger, Consolidation, or Sale of Assets.
(a) The Company shall not, in a single transaction or a series of related
transactions, consolidate with or merge with or into, or convey or transfer all or
substantially all its assets to, any Person, unless:
2
(1) the resulting, surviving or transferee Person (the “Successor Company”)
will be a Person organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia;
(2) the Successor Company, if not the Company, will expressly assume, by a
Second Supplemental Indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the Notes,
this Indenture and the Registration Rights Agreement;
(3) [Intentionally Omitted];
(4) [Intentionally Omitted]; and
(5) [Intentionally Omitted].
In addition, the Company will not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related transactions,
to any other Person.
(b) The Successor Company will be substituted for, and may exercise every
right and power of, the Company under this Indenture. Thereafter, the Company (if
it is not the Successor Company) will be relieved of all obligations and covenants
under this Indenture, except that, in the case of a conveyance or transfer of less
than all its assets, the Company will not be released from the obligation to pay
the principal of and interest on the Notes.
(c) The provisions of this Section 5.01 do not prohibit any Restricted
Subsidiary from consolidating with, merging into or transferring all or part of its
properties and assets to the Company. Additionally, the Company may merge with an
Affiliate incorporated or organized for the purpose of reincorporating or
reorganizing the Company in another jurisdiction to realize tax or other benefits.
The definition of “Successor Company” will not include companies formed by
consolidations, mergers or transfers of properties or assets pursuant to this
Section 5.01(c).
Section 1.04. Section 6.01 of the Indenture. Section 6.01 of the Indenture is hereby
amended, effective as of the Acceptance Date, to read in its entirety as follows:
Section 6.01 Events of Default.
(a) Each of the following is an “Event of Default”:
(1) a default in any payment of interest on, or Liquidated Damages, if any,
with respect to, any Note when due, whether or not such payment is prohibited by
Article 10 hereof, continued for 30 days;
(2) a default in the payment of principal of, or premium, if any, on any Note
when due at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise, whether or not such payment is
prohibited by Article 10 of this Indenture;
3
(3) the failure by the Company or any of its Restricted Subsidiaries to comply
with its obligations under Article 5 hereof;
(4) [Intentionally Omitted];
(5) [Intentionally Omitted];
(6) [Intentionally Omitted];
(7) [Intentionally Omitted];
(8) [Intentionally Omitted];
(9) [Intentionally Omitted]; or
(10) [Intentionally Omitted].
(b) The events listed in Section 6.01(a) hereof will constitute Events of
Default regardless of their reasons, whether voluntary or involuntary or whether
effected by operation of law or pursuant to any judgment, decree, order, rule or
regulation of any administrative or governmental body.
ARTICLE II
GENERAL PROVISIONS
Section 2.01. Effectiveness of Amendments. This Second Supplemental Indenture is
effective as of the date first above written. The Indenture shall remain operative in the form in
which it existed prior to the date hereof until the date (the “Acceptance Date”) on which
the Company accepts for purchase and payment all Notes that have been properly tendered and not
withdrawn pursuant to the Offer. On and after the Acceptance Date, the Proposed Amendments shall
be effective.
Section 2.02. Ratification of Indenture. The Indenture is in all respects
acknowledged, ratified and confirmed, and shall continue in full force and effect in accordance
with the terms thereof and as amended and supplemented by this Second Supplemental Indenture. The
Indenture and this Second Supplemental Indenture, shall be read, taken and construed as one and the
same instrument.
Section 2.03. Certificate and Opinion as to Conditions Precedent. Pursuant to Section
12.04 of the Indenture, simultaneously with and as a condition to the execution of this Second
Supplemental Indenture, the Company is delivering to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each in form acceptable to the Trustee.
Section 2.04. Effect of Headings. The Article and Section headings in this Second
Supplemental Indenture are for convenience only and shall not affect the construction of this
Second Supplemental Indenture.
Section 2.05. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW
4
YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK OBLIGATIONS LAW.
Section 2.06. Multiple Counterparts. The parties may sign multiple counterparts of
this Second Supplemental Indenture. Each signed counterpart shall be deemed an original, but all
of them together represent one and the same agreement.
Section 2.07. Trustee Makes No Representation. The Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or sufficiency of this Second
Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made
solely by the Company.
[Remainder of page intentionally left blank]
5
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the date first above written, to become operative on the Acceptance Date.
| GENERAL NUTRITION CENTERS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| GENERAL NUTRITION INVESTMENT COMPANY NUTRA SALES CORPORATION (f/k/a General Nutrition Sales Corporation) GNC (CANADA) HOLDING COMPANY GENERAL NUTRITION DISTRIBUTION COMPANY GENERAL NUTRITION GOVERNMENT SERVICES, INC. GENERAL NUTRITION INTERNATIONAL, INC. GN INVESTMENT, INC. GNC CANADA LIMITED (f/k/a GNC, Limited) GNC US DELAWARE, INC. GENERAL NUTRITION SYSTEMS, INC. INFORMED NUTRITION, INC. GENERAL NUTRITION CORPORATION GENERAL NUTRITION DISTRIBUTION, L.P. GENERAL NUTRITION, INCORPORATED GENERAL NUTRITION COMPANIES, INC. GNC FRANCHISING, LLC NUTRA MANUFACTURING, INC. (f/k/a Nutricia Manufacturing USA Inc.) |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
||||
| By: | ||||
| Name: | ||||
| Authorized Signatory | ||||
