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EXHIBIT 10.18
U.S. $700,000,000
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 31, 1997
Among
GENERAL NUTRITION, INCORPORATED and
GENERAL NUTRITION CORPORATION,
as Borrowers,
and
GENERAL NUTRITION COMPANIES, INC.
and
THE RESTATEMENT LENDERS NAMED HEREIN,
as Restatement Lenders,
and
BANQUE NATIONALE DE PARIS,
as Administrative Agent and as Documentation Agent
and as Issuing Bank and as Swing Line Bank
and
PNC BANK, NATIONAL ASSOCIATION and ABN AMRO BANK N.V.
as Syndication Agents
and
THE SUMITOMO BANK, LIMITED, FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, THE FUJI BANK, LIMITED, NEW YORK BRANCH, FLEET NATIONAL
BANK and UNITED STATES NATIONAL BANK OF OREGON
as Co-Agents
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T A B L E O F C O N T E N T S
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms................................... 2
SECTION 1.02. Computation of Time Periods............................. 26
SECTION 1.03. Accounting Terms........................................ 27
SECTION 1.04. Currency Equivalents Generally.......................... 27
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances............................................ 27
SECTION 2.02. Making the Advances..................................... 28
SECTION 2.03. Repayment............................................... 31
SECTION 2.04. Optional Reduction of the Commitments................... 31
SECTION 2.05. Prepayments............................................. 31
SECTION 2.06. Interest................................................ 32
SECTION 2.07. Fees.................................................... 33
SECTION 2.08. Conversion of Advances.................................. 34
SECTION 2.09. Increased Costs, Etc.................................... 34
SECTION 2.10. Payments and Computations............................... 36
SECTION 2.11. Taxes................................................... 37
SECTION 2.12. Sharing of Payments, Etc................................ 39
SECTION 2.13. Letters of Credit....................................... 40
SECTION 2.14. Use of Proceeds......................................... 44
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Fourth Restatement Date......... 44
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance..... 48
SECTION 3.03. Determinations Under Section 3.01....................... 48
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers......... 49
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants................................... 55
SECTION 5.02. Negative Covenants...................................... 58
SECTION 5.03. Reporting Requirements to Lenders....................... 68
SECTION 5.04. Financial Covenants..................................... 71
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default....................................... 73
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default.76
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action.................................76
SECTION 7.02. Agents' Reliance, Etc....................................77
SECTION 7.03. Agents, Issuing Bank, Swing Line Bank and Affiliates.....77
SECTION 7.04. Lender Credit Decision...................................78
SECTION 7.05. Indemnification..........................................78
SECTION 7.06. Successor Administrative Agents..........................79
SECTION 7.07. The Agents...............................................80
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc..........................................80
SECTION 8.02. Notices, Etc.............................................80
SECTION 8.03. No Waiver; Remedies......................................81
SECTION 8.04. Costs and Expenses.......................................81
SECTION 8.05. Right of Setoff..........................................82
SECTION 8.06. Binding Effect...........................................83
SECTION 8.07. Assignments and Participations...........................83
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SECTION 8.08. Governing Law............................................86
SECTION 8.09. Execution in Counterparts................................86
SECTION 8.10. No Liability of the Issuing Bank.........................86
SECTION 8.11. Confidentiality..........................................87
SECTION 8.12. Jurisdiction, Etc........................................87
SECTION 8.13. Waiver of Jury Trial.....................................88
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Assignment of Existing Advances
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(k) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(r) - Environmental Permits
Schedule 4.01(s) - Listings by the Environmental Protection Agency
Schedule 4.01(t) - Hazardous Materials
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EXHIBITS
Exhibit A-1 - Form of Amended and Restated Revolving Credit Note
Exhibit A-2 - Form of Swing Line Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Fourth Amended and Restated Parent Guaranty
Exhibit E - Form of Fourth Amended and Restated Subsidiary Guaranty
Exhibit F - Form of Assignment Agreement
Exhibit G - Form of Intercompany Subordination Agreement
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 31, 1997
among GENERAL NUTRITION, INCORPORATED, a Pennsylvania corporation ("GNI"),
GENERAL NUTRITION CORPORATION, a Pennsylvania corporation ("GNC"), GENERAL
NUTRITION COMPANIES, INC., a Delaware corporation ("GNCI"), the banks and other
lenders (the "Restatement Lenders") listed on the signature pages hereof,
BANQUE NATIONALE DE PARIS ("BNP"), as administrative agent (together with any
successor appointed pursuant to Article VII, the "Administrative Agent") and as
documentation agent (the "Documentation Agent"), for the Lenders hereunder, PNC
Bank, National Association and ABN AMRO Bank N.V., as syndication agents (the
"Syndication Agents"), THE SUMITOMO BANK, LIMITED, FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, THE FUJI BANK, LIMITED, NEW YORK BRANCH, FLEET NATIONAL BANK
and UNITED STATES NATIONAL BANK OF OREGON, as co-agents (the "Co-Agents," and,
together with the Administrative Agent, the Documentation Agent, and the
Syndication Agents, the "Agents") and BNP, as issuing bank (the "Issuing Bank")
and as swing line bank (the "Swing Line Bank").
PRELIMINARY STATEMENTS:
(1) The Restatement Lenders (as defined below) and the Borrowers have
agreed to amend and restate the Existing Credit Agreement (as defined below) in
order to allow the Existing Lenders (as defined below) to assign a portion of
their Commitments to the Restatement Lenders hereunder, and to modify their
Commitments in order to (i) pay transaction fees and expenses in connection
with the transactions contemplated hereunder, (ii) finance capital expenditures
and corporate acquisitions of businesses or product lines in the Health Care
Business (as defined below) and (iii) provide funds for other general corporate
purposes. The Restatement Lenders have indicated their willingness to agree to
amend and restate the Existing Credit Agreement and to lend such amounts on the
terms and conditions of this Agreement.
(2) Simultaneously with the execution hereof, the Existing Lenders have
entered into an Assignment Agreement in the form of Exhibit F attached hereto
dated as of the date hereof (the "Assignment Agreement"), with the Restatement
Lenders pursuant to which such Existing Lenders have agreed to sell and assign
to the Restatement Lenders, and the Restatement Lenders have agreed to purchase
and assume, as of the Fourth Restatement Date, all of such Existing Lenders'
rights and obligations under the Existing Credit Agreement on the terms set
forth in the Assignment Agreement. After giving effect to such sale and
assignment as of the Fourth Restatement Date, the Commitments of and the amount
of Advances owing to each of the Restatement Lenders will be as set forth on
Schedule I.
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree
that, subject to the satisfaction of the conditions set forth in Section 3.01,
the Existing Credit Agreement is amended and restated in its entirety to read
as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance, a Letter of Credit Advance or
a Swing Line Advance.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the Voting
Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by
contract or otherwise.
"Adjusted Maximum Leverage Ratio" means, with respect to any period, the
ratio of (a) Consolidated Total Adjusted Debt of GNCI and its Subsidiaries at
the end of such period to (b) Consolidated EBITDA of GNCI and its Subsidiaries
for such period (the computation of such ratio to include, in the case of
Indebtedness created, incurred or assumed in connection with any Investment
permitted by Sections 5.02(e)(i), (iv), (v), (vi), (vii) and (ix), the EBITDA
of each such Person in which such Investment was made for the 12-month period,
or such shorter period as appropriate, ended on or immediately prior to the end
of such period).
"Administrative Agent" has the meaning specified in the recital of parties
to this Agreement.
"Administrative Agent's Account" means the account of the Administrative
Agent maintained by the Administrative Agent at the Federal Reserve Bank of New
York, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, ABA No. 000000000, for
further credit to Account No. 75042070103, or such other account maintained by
the
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Administrative Agent and designated by the Administrative Agent in a written
notice to the Lenders and the Borrowers.
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Performance Level applicable on such date as set
forth below:
Applicable Margin Applicable
Performance for Margin for Letters of
Level Base Rate Eurodollar Rate Credit
Advances Advances
-------------------- --------------------------- ------------------------- --------------------
I 0% 0.50% 0.50%
II 0% 0.75% 0.75%
III 0% 1.00% 1.00%
IV 0% 1.25% 1.25%
V 0.25% 1.50% 1.50%
-------------------- --------------------------- ------------------------- --------------------
provided, however, that (a) no change in the Applicable Margin shall be
effective until three Business Days after the date on which the Administrative
Agent receives financial statements pursuant to Section 5.03(b) or (c), as the
case may be, demonstrating that a new Performance Level is applicable; (b) for
the period commencing on the Fourth Restatement Date and ending on the date
three Business Days after delivery of financial statements for the Rolling
Period ended on or about April 26, 1997, the Applicable Margin shall be as set
forth opposite Performance Level I; and (c) notwithstanding anything contained
herein to the contrary, the Applicable Margin shall be at Performance Level V
upon the occurrence and during the continuance of an Event of Default.
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"Applicable Percentage" means, as of any date, a percentage per annum
determined by reference to the Performance Level applicable on such date as set
forth below:
Performance Applicable
Level Percentage
------------------------------- -------------------------------
I 0.175%
II 0.200%
III 0.200%
IV 0.250%
V 0.250%
------------------------------- -------------------------------
provided, however, that (a) no change in the Applicable Percentage shall be
effective until three Business Days after the date on which the Administrative
Agent receives financial statements pursuant to Section 5.03(b) or (c), as the
case may be, demonstrating that a new Performance Level is applicable; (b) for
the period commencing on the Fourth Restatement Date and ending on the date
three Business Days after delivery of financial statements for the Rolling
Period ended on or about April 26, 1997, the Applicable Percentage shall be as
set forth opposite Performance Level I; and (c) notwithstanding anything
contained herein to the contrary, the Applicable Margin shall be at Performance
Level V upon the occurrence and during the continuance of an Event of Default.
"Appropriate Lender" means, as to any Facility, a Lender that has a
Commitment for a portion of such Facility at such time or, as to the Swing Line
Advances, the Swing Line Bank.
"Assignment Agreement" has the meaning specified in the Preliminary
Statements.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Administrative
Agent, in accordance with Section 8.07 and in substantially the form of Exhibit
C hereto.
"Available Amount" of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing).
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"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the higher
of:
(a) the rate of interest advised or designated by BNP in New York,
New York, from time to time, as its prime rate (and such term shall not be
construed to be its best or most favorable rate); and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided in
Section 2.06(a)(i).
"BNP" has the meaning specified in the recital of parties to this
Agreement.
"Board of Directors" means, with respect to any Person, the board of
directors of such Person or any duly authorized committee of such board.
"Borrower" means GNC or GNI, as designated in the applicable Notice of
Borrowing.
"Borrowing" means a Revolving Credit Borrowing or a Swing Line Borrowing.
"Business Day" means a day of the year on which banks are not required or
authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
"Capitalized Leases" has the meaning specified in clause (e) of the
definition of "Indebtedness".
"Cash Equivalents" means any of the following, to the extent owned by the
Borrowers and their Subsidiaries free and clear of all Liens and having a
maturity of not greater than 90 days from the date of acquisition thereof: (a)
readily marketable direct obligations of the Government of the United States or
any agency or instrumentality thereof or obligations unconditionally guaranteed
by the full faith and credit of the Government of the United States; (b)
certificates of deposit of or time deposits with any commercial bank that is
(i) a Lender or (ii) a member of the Federal Reserve System that issues (or the
parent of which issues) commercial paper rated as described in clause (c), that
is organized under the laws of the United States or any State thereof and that
has combined capital and surplus of at least $500,000,000; (c) commercial paper
in an aggregate amount of no more than
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$250,000 per issuer outstanding at any time, issued by any corporation
organized under the laws of any State of the United States, rated at least
"Prime-1" (or the then equivalent grade) by Xxxxx'x Investors Service, Inc. or
"A-1" (or the then equivalent grade) by Standard & Poor's Rating Group, a
division of the McGraw Hill Companies, Inc.; or (d) money market mutual funds
registered under the Investment Company Act of 1940, investing in obligations,
or repurchase agreements secured by obligations, of the type described in
clause (a) or (b).
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980.
"Claims" has the meaning specified in the definition of "Environmental
Action".
"Co-Agent" has the meaning specified in the recital of parties to this
Agreement.
"Commitment" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Confidential Information" means information that is furnished to any
Agent or any Lender by or on behalf of the Borrowers on a confidential basis,
but does not include any such information that is or becomes generally
available to the public other than as a result of a breach by such Agent or any
Lender of its obligations hereunder or that is or becomes available to such
Agent or such Lender from a source other than the Borrowers that is not, to the
best of such Agent's or such Lender's knowledge, acting in violation of a
confidentiality agreement with the Borrowers.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Conversion", "Convert" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.08
or 2.09.
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"Documentation Agent" has the meaning set forth in the recital of parties
to this Agreement.
"Dollars" and "$" sign each means lawful money of the United States.
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"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrowers and the Administrative Agent.
"EBITA" means, for any period, net income (or net loss) plus the sum of,
without duplication, (a) Interest Expense, (b) income tax expense, (c)
amortization expense, including amortization with respect to deferred financing
fees, (d) losses resulting from any sale of fixed assets, (e) noncash charges
relating to pensions, stock options, stock appreciation rights and other equity
based incentive plans, (f) extraordinary or unusual losses or expenses, in each
case, to the extent such amounts are deducted in calculating net income or loss
and (g) dividends, royalty payments or returns of capital actually received in
cash from any non-wholly-owned Subsidiary or Affiliate less the sum of, without
duplication, (i) gains resulting from any sale of fixed assets, (ii)
extraordinary or unusual gains and (iii) noncash credits relating to pensions,
stock options, stock appreciation rights and other equity based incentive
plans, in each case, to the extent such amounts are included in calculating net
income or loss, in each case determined in accordance with GAAP for such
period; provided, however, that for purposes of calculating Consolidated EBITA,
(x) other than as set forth in clause (g) above, no portion of any
non-wholly-owned Subsidiary's, or any Affiliate's, net income and any
adjustments thereto that under GAAP would be otherwise included in calculating
Consolidated EBITA for any period, shall be taken into account and (y) the net
income and any adjustments thereto of all Foreign Subsidiaries of GNCI shall
not be recognized to the extent such amount exceeds 10% of Consolidated EBITA.
"EBITDA" means, for any period, net income (or net loss) plus the sum of,
without duplication, (a) Interest Expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense, including amortization with
respect to deferred financing fees, (e) losses resulting from any sale of fixed
assets, (f) noncash charges relating to pensions, stock options, stock
appreciation rights and other equity based incentive plans and (g)
extraordinary or unusual losses or expenses, in each case, to the extent such
amounts are deducted in calculating net income or loss, less the sum of,
without duplication, (i) gains resulting from any sale of fixed assets, (ii)
extraordinary or unusual gains and (iii) noncash credits relating to pensions,
stock options, stock appreciation rights and other equity based incentive
plans, in each case, to the extent such amounts are included in calculating net
income or loss, in each case determined in accordance with GAAP for such
period; provided, however, that for purposes of calculating Consolidated
EBITDA, (x) no portion of any non-wholly-owned Subsidiary's, or any
Affiliate's, net income and any adjustments thereto that are attributable to
interests not owned by GNCI and its Subsidiaries and that under
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GAAP would be otherwise included in calculating Consolidated EBITDA for any
period, shall be taken into account and (y) the net income and any adjustments
thereto of all Foreign Subsidiaries of GNCI and any other Subsidiary or
Affiliate of GNCI that is organized and with substantially all of its assets
located outside of the United States, shall not be recognized to the extent
such aggregate amount exceeds 10% of Consolidated EBITDA.
"Eligible Assignee" means (a) a commercial bank organized under the laws
of the United States, or any State thereof, and having a combined capital and
surplus of at least $500,000,000, or any Affiliate thereof; (b) a savings and
loan association or savings bank organized under the laws of the United States,
or any State thereof, and having a combined capital and surplus of at least
$500,000,000; (c) a commercial bank organized under the laws of any other
country that is a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, and
having a combined capital and surplus of at least $500,000,000, so long as such
bank is acting through a branch or agency located in the United States; (d) the
central bank of any country that is a member of the OECD; (e) a finance
company, insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of
its business and having a combined capital and surplus of at least $500,000,000
or with respect to a fund with total assets under its management in excess of
$500,000,000; and (f) any other Person (other than an Affiliate of any
Borrower) approved by the Administrative Agent and the Borrowers, such approval
not to be unreasonably withheld.
"Environmental Action" means any administrative, regulatory or judicial
action, suit, demand, demand letter, claim, notice of noncompliance or
violation, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law or any Environmental Permit
(collectively, "Claims") including, without limitation, (a) any Claim by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any Environmental
Law and (b) any Claim by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Materials or arising from alleged injury or threat of injury to
the environment or, to the extent caused by pollution or other environmental
degradation, human health or safety.
"Environmental Law" means any federal, state or local law, statute, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
relating to Hazardous Materials, the environment, or, to the extent related to
pollution or other environmental degradation, human health or safety,
including, without
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limitation, CERCLA, the Resource Conservation and Recovery Act, the Hazardous
Materials Transportation Act, the Clean Water Act, the Toxic Substances Control
Act, the Clean Air Act, the Safe Drinking Water Act, the Atomic Energy Act, the
Federal Insecticide, Fungicide and Rodenticide Act and the Occupational Safety
and Health Act.
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"ERISA Affiliate" means, with respect to any Person, any other Person that
for purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" means, with respect to any Person:
(a) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan of such Person or any of
its ERISA Affiliates unless the 30-day notice requirement with respect to
such event has been waived by the PBGC;
(b) the provision by the administrator of any Plan of such Person or
any of its ERISA Affiliates of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA);
(c) the cessation of operations at a facility of such Person or any
of its ERISA Affiliates in the circumstances described in Section 4062(e)
of ERISA;
(d) the withdrawal by such Person or any of its ERISA Affiliates from
a Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA;
(e) the failure by such Person or any of its ERISA Affiliates to make
a payment to a Plan required under Section 302(f)(1) of ERISA;
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(f) the adoption of an amendment to a Plan of such Person or any of
its ERISA Affiliates requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or
(g) the institution by the PBGC of proceedings to terminate a Plan of
such Person or any of its ERISA Affiliates, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section
4042 of ERISA that could constitute grounds for the termination of, or the
appointment of a trustee to administer, such Plan.
"Eurodollar Liabilities" has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Eurodollar Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its name
on Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to GNC, GNI and the Administrative Agent.
"Eurodollar Rate" means for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the average of the
respective rates per annum posted by each of the principal London offices of
banks posting rates as displayed on the Telerate screen, page 3750, or such
other page as may replace such page on such service for the purpose of
displaying the London interbank offered rate of major banks for deposits in
dollars, at approximately 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period for deposits in amounts and durations
comparable to such Borrowing and such Interest Period (and rounded upward to
the next whole multiple of 1/16 of 1%) by (b) a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage for such Interest Period; provided that
for purposes of calculating the Eurodollar Rate with respect to any Interest
Period of one week during the first thirty days following the Fourth
Restatement Date, the Reuters screen, page LIBO should be used in lieu of the
Telerate screen, page 3750 in clause (a) hereof.
"Eurodollar Rate Advance" means an Advance that bears interest as provided
in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" means, for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing, the reserve
percentage applicable two Business Days before the first day of such Interest
Period
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under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor thereto) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurodollar Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" means the credit agreement dated as of January
18, 1993, which credit agreement was amended and restated pursuant to an
amended and restated credit agreement dated as of February 10, 1993, was
further amended and restated pursuant to a second amended and restated credit
agreement dated as of July 19, 1994 and was further amended and restated
pursuant to a third amended and restated credit agreement dated as of March 21,
1996 with the banks parties thereto and BNP, as agent, as amended, supplemented
or otherwise modified through the Fourth Restatement Date.
"Existing Lenders" means the lenders party to the Existing Credit
Agreement.
"Existing Letters of Credit" has the meaning specified in Section 2.13(a).
"Facility" means the Revolving Credit Facility, the Letter of Credit
Facility or the Swing Line Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period (i) to the rate published by
the Telerate service on page five of its daily report as the "New York Offered
Rate" as of 10:00 A.M. (New York City time) for such day (or, if such day is
not a Business Day, for the immediately preceding Business Day) or (ii) if the
Telerate service shall cease to publish or otherwise shall not publish such
rates for any day that is a Business Day, to 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 for such day (or, if
such day is not a Business Day, for the immediately preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day for
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
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"Fiscal Quarter" means a fiscal quarter of GNCI and its Subsidiaries
ending on or about April 27, July 20, October 12 or February 3 of each year.
"Fiscal Year" means the period commencing the day after the Saturday
closest to but not prior to the 31st day of January in any calendar year and
ending on the Saturday closest to but not preceding the 31st day of January in
the next succeeding calendar year, and when referred to from time to time
herein by reference to a calendar year, shall be the Fiscal Year beginning in
the calendar year to which reference is made.
"Fixed Charge Coverage Ratio" means, with respect to any period, the ratio
for GNCI and its Subsidiaries during such period of (a) the sum of (x)
Consolidated EBITA plus (y) Consolidated Store Operating Lease Expense to (b)
the sum of (i) Consolidated Interest Expense plus (ii) Consolidated income
taxes which were paid in cash plus (iii) Consolidated Store Operating Lease
Expense plus (iv) scheduled amortization of Consolidated Funded Indebtedness.
"Foreign Currency" means lawful currency other than Dollars which is
freely transferable and convertible into Dollars.
"Foreign Subsidiary" means a wholly-owned (except for any shares of
capital stock that are Qualifying Shares) Subsidiary that is organized, and
with substantially all of its assets located, outside of the United States.
"Fourth Amended and Restated Parent Guaranty" has the meaning specified in
Section 3.01(f)(viii).
"Fourth Amended and Restated Subsidiary Guaranty" has the meaning
specified in Section 3.01(f)(viii) and shall include any subsidiary guaranty
entered into by any Loan Party pursuant to Section 5.01(m).
"Fourth Restatement Date" means any date on or before April 30, 1997 on
which the conditions set forth in Article III applicable to the effectiveness
of this Agreement have been fulfilled or waived.
"Franchisee Note" means a promissory note duly executed and delivered to a
Borrower or any Subsidiary by a Person that is a franchisee of a retail outlet
of such Borrower or such Subsidiary, including any amendment, modification,
renewal or replacement of such promissory note.
"Funded Indebtedness" of any Person means Indebtedness of such Person that
by its terms matures more than one year after the date of creation or matures
within
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one year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year after such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year after such date, including,
without limitation, all amounts of Funded Indebtedness of such Person required
to be paid or prepaid within one year after the date of determination.
"GAAP" has the meaning specified in Section 1.03.
"GNC" has the meaning set forth in the recitals of the parties to this
Agreement.
"GNC Borrower Account" means the account of GNC maintained by GNC with BNP
at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
20065800113, or such other account as is agreed upon between GNC and the
Administrative Agent.
"GNCC" means GNC (Canada) Holding Company, a Delaware corporation.
"GNCI" has the meaning set forth in the recitals of the parties to this
Agreement.
"GNCL" means GNC Limited, a Delaware corporation.
"GNCUK" means GNC (UK) Holding Company, a Delaware corporation.
"GND" means General Nutrition Distribution Company, a Pennsylvania
business trust whose sole beneficiaries are GNS and GNIC.
"GNF" means GNC Franchising, Inc., a Pennsylvania corporation.
"GNG" means General Nutrition Government Services, Inc., a Delaware
corporation.
"GNI" has the meaning set forth in the recitals of the parties to this
Agreement.
"GNI Borrower Account" means the account of GNI maintained by GNI with BNP
at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
20065600196, or such other account as is agreed upon between GNI and the
Administrative Agent.
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"GNIC" means General Nutrition Investment Company, a Delaware corporation
and a wholly-owned subsidiary of GNI.
"GNII" means General Nutrition International, Inc. a Delaware corporation
and a wholly-owned subsidiary of GNF.
"GNCIH" means GNC International Holdings, Inc., a Delaware corporation.
"GNP" means General Nutrition Products, Inc., a South Carolina
corporation.
"GNS" means General Nutrition Services, Inc., a Delaware corporation and a
wholly-owned subsidiary of GNIC.
"Gustine" has the meaning set forth in Section 5.02(e)(x).
"Hazardous Materials" means (a) petroleum or petroleum products, natural
or synthetic gas, asbestos in any form that is or could become friable, urea
formaldehyde foam insulation and radon gas, (b) any substances defined as or
included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "extremely hazardous wastes," "restricted hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants" or
"pollutants," or words of similar import, under any Environmental Law and (c)
any other substance exposure to which is regulated under any Environmental Law.
"Health Care Business" means any business which is involved in providing
products, services or information in the self-care and personal health
enhancement markets.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Indebtedness" of any Person means, without duplication:
(a) all indebtedness of such Person for borrowed money;
(b) all Obligations of such Person for the deferred purchase price of
property or services;
(c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments;
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(d) all Obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property);
(e) all Obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases
("Capitalized Leases");
(f) all Obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities;
(g) all Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any capital stock
(other than Obligations, if any, (i) arising from the declaration of
dividends on common stock or (ii) to pay stated dividends on Preferred
Stock) or other ownership or profit interest in such Person or any other
Person, or any warrants, rights or options to acquire such capital stock,
valued, in the case of Redeemable Preferred Stock, at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends;
(h) all Obligations in respect of Hedge Agreements;
(i) all Indebtedness of others referred to in clauses (a) through (h)
above guaranteed directly or indirectly in any manner by such Person, or
in effect guaranteed directly or indirectly by such Person through an
agreement (i) to pay or purchase such Indebtedness or to advance or supply
funds for the payment or purchase of such Indebtedness, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment
of such Indebtedness or to assure the holder of such Indebtedness against
loss, (iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (iv)
otherwise to assure a creditor against loss; and
(j) all Indebtedness referred to in clauses (a) through (h) above
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for
the payment of such Indebtedness.
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"Indemnified Party" has the meaning specified in Section 8.04(b).
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Intercompany Subordinated Debt" means Indebtedness from time to time of
GNI to GNCI subordinated pursuant to the Intercompany Subordination Agreement.
"Intercompany Subordination Agreement" means an agreement substantially in
the form of Exhibit G hereto made by GNCI in favor of BNP, as Administrative
Agent for the Lenders, as of the date hereof.
"Interest Expense" means, with respect to any Person for any period
(without duplication), interest expense for such period on all Indebtedness of
such Person and its Subsidiaries, net of interest income (other than interest
income from Franchisee Notes) for such period, including, without limitation,
(a) interest in respect of Indebtedness resulting from Advances, (b)
commissions, discounts and other fees and charges payable in connection with
letters of credit, (c) the net payment paid in connection with Hedge Agreements
less any net credits received in connection with Hedge Agreements, (d) the
interest component of payments under Capitalized Leases, (e) amortization of
original issue discount and (f) all other noncash interest but excluding
amortization with respect to deferred financing fees.
"Interest Period" means, for all Eurodollar Rate Advances comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar
Rate Advances or on the date of the Conversion of any Base Rate Advance into
any such Eurodollar Rate Advance, and ending on the last day of the period
selected by the Borrowers pursuant to the provisions below, and thereafter,
each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrowers pursuant to the provisions below. The duration of each such Interest
Period shall be (except as provided for below) one, two, three or six months,
as the Borrowers may, upon notice received by the Administrative Agent not
later than 12:00 P.M. (New York City time) on the third Business Day prior to
the first day of such Interest Period, select; provided, however, that:
(a) no Borrower may select any Interest Period that ends after any
principal repayment installment date unless, after giving effect to such
selection, the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on or prior to
such principal repayment installment date shall be at least equal to the
aggregate principal amount of Advances due and payable on or prior to such
date;
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(b) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Borrowing shall be of the same
duration;
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day;
provided, however, that, if such extension would cause the last day of
such Interest Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the immediately preceding
Business Day;
(d) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of such succeeding
calendar month; and
(e) during the first thirty days following the Fourth Restatement
Date, the Borrowers may, upon notice received by the Administrative Agent
not later than 12:00 P.M. (New York City time) on the third Business Day
prior to the first day of the Interest Period, select an Interest Period
of one week; provided, however, that no Borrower may select an Interest
Period with a one week duration more than four times during such period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"Investment" in any Person means any loan or advance to such Person, any
purchase or other acquisition of any capital stock, warrants, rights, options,
obligations or other securities of such Person, any capital contribution to
such Person or any other investment in such Person, including, without
limitation, any arrangement pursuant to which the investor incurs Indebtedness
of the types referred to in clauses (h) and (i) of the definition of
"Indebtedness" in respect of such Person.
"Issuing Bank" means BNP.
"L/C Cash Collateral Account" means the non-interest bearing cash
collateral accounts with BNP at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Account Nos. 20067200114 and 20067400128 in the name of GNI and GNC,
respectively.
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"L/C Related Documents" has the meaning specified in Section 2.13(d)(ii).
"Lenders" means the Restatement Lenders listed on the signature pages
hereof and each Eligible Assignee that shall become a party hereto pursuant to
Section 8.07.
"Letter of Credit Advance" means an advance made by the Issuing Bank or
any Lender pursuant to Section 2.13(c).
"Letter of Credit Commitment" has the meaning specified in Section
2.13(a).
"Letter of Credit Facility" has the meaning specified in Section 2.13(a).
"Letters of Credit" has the meaning specified in Section 2.13(a).
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Loan Documents" means (a) for purposes of this Agreement and the Notes
and any amendment or modification hereof or thereof and for all other purposes
other than for purposes of the Fourth Amended and Restated Parent Guaranty, and
the Fourth Amended and Restated Subsidiary Guaranty (i) this Agreement, (ii)
the Notes, (iii) the Fourth Amended and Restated Parent Guaranty, and (iv) the
Fourth Amended and Restated Subsidiary Guaranty, (b) for purposes of the Fourth
Amended and Restated Parent Guaranty and the Fourth Amended and Restated
Subsidiary Guaranty, (i) this Agreement, (ii) the Notes, (iii) the Fourth
Amended and Restated Parent Guaranty, (iv) the Fourth Amended and Restated
Subsidiary Guaranty, and (v) each Hedge Agreement entered into with a Lender,
in each case as amended or otherwise modified from to time.
"Loan Parties" means the Borrowers, GNCI and each Subsidiary Guarantor.
"Margin Stock" has the meanings specified in Regulations G and U of the
Board of Governors of the Federal Reserve System.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Loan Parties and their Subsidiaries taken as a
whole.
"Material Adverse Effect" means any material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or
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prospects of the Loan Parties and their Subsidiaries taken as a whole, (b) the
rights and remedies of any Agent or any Lender under any Loan Document or any
Related Document or (c) the ability of any Loan Party to perform its
Obligations under any Loan Document or any Related Document to which it is or
is to be a party.
"Material Contract" means (a) the Amended and Restated Agreement dated
September 24, 1992 by and between Showa Denko America, Inc. and General
Nutrition, Inc. and (b) the Guaranty Agreement dated as of September 24, 1992
by and between Showa Denko K.K. and General Nutrition, Inc., as in effect on
the Fourth Restatement Date.
"Maximum Leverage Ratio" means, with respect to any period, the ratio of
(a) Consolidated Total Debt of GNCI and its Subsidiaries at the end of such
period to (b) Consolidated EBITDA of GNCI and its Subsidiaries for such period
(the computation of such ratio to include, in the case of Indebtedness created,
incurred or assumed in connection with any Investment permitted by Sections
5.02(e)(i), (iv), (v), (vi), (vii) and (ix), the EBITDA of each such Person in
which such Investment was made for the 12-month period, or such shorter period
as appropriate, ended on or immediately prior to the end of such period).
"Multiemployer Plan" means, with respect to any Person, a multiemployer
plan, as defined in Section 4001(a)(3) of ERISA, to which such Person or any of
its ERISA Affiliates is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means, with respect to any Person, a single
employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of such Person or any of its ERISA Affiliates and at
least one Person other than such Person and its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its ERISA Affiliates
could reasonably be expected to have liability under Section 4064 or 4069 of
ERISA in the event such plan has been or were to be terminated.
"NFC" means Nature Food Centres, Inc., a Maryland Corporation.
"NFCI" means NFC, Inc., a Massachusetts corporation.
"NFN" means Nature's Fresh Northwest, Inc., a Delaware corporation.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any asset or the incurrence or issuance of any
Indebtedness or capital
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stock, any securities convertible into or exchangeable for capital stock or any
warrants, rights or options to acquire capital stock by any Person, the
aggregate amount of cash received from time to time by or on behalf of such
Person in connection with such transaction after deducting therefrom only (a)
reasonable and customary brokerage commissions, underwriting fees and
discounts, legal fees, finder's fees and other similar fees and commissions,
(b) the amount of taxes payable in connection with or as a result of such
transaction, (c) the amount of any Indebtedness secured by a Lien on such asset
that, by the terms of such transaction, is required to be repaid upon such
disposition and (d) other reasonable and customary costs and expenses
ordinarily incurred and paid by a seller, lessor, transferor or issuer, as the
case may be, in each case to the extent, but only to the extent, that the
amounts so deducted are substantially simultaneously paid to a Person that is
not an Affiliate and are properly attributable to such transaction or to the
asset that is the subject thereof.
"Note" means a Revolving Credit Note or a Swing Line Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.13(b)(i).
"Notice of Swing Line Borrowing" has the meaning specified in Section
2.02(b).
"Obligation" means, with respect to any Person, any obligation of such
Person of any kind, including, without limitation, any liability of such Person
on any claim, whether or not the right of any creditor to payment in respect of
such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured, and
whether or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(e). Without limiting the generality of
the foregoing, the Obligations of the Loan Parties under the Loan Documents
include (a) the obligation to pay principal, interest, charges, expenses, fees,
attorneys' fees and disbursements, indemnities and other amounts payable by any
Loan Party under any Loan Document and (b) the obligation to reimburse any
amount in respect of any of the foregoing that any Lender, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and Development.
"Other Taxes" has the meaning specified in Section 2.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
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"Performance Level" means, as of any date of determination, the level set
forth below as then applicable, as determined in accordance with the following
provisions of this definition:
I Maximum Leverage Ratio is less than or equal to 2.00 : 1.00.
II Maximum Leverage Ratio is greater than 2.00 : 1.00 but less than or
equal to 2.50 : 1.00.
III Maximum Leverage Ratio is greater than 2.50 : 1.00 but less than or
equal to 3.00 : 1.00.
IV Maximum Leverage Ratio is greater than 3.00 : 1.00 but less than or
equal to 3.25 : 1.00.
V Maximum Leverage Ratio is greater than 3.25 : 1.00.
"Permitted Franchise Asset Sale" means the sale, in the ordinary course of
business, by the Borrowers and their Subsidiaries pursuant to a franchise
agreement of equipment, fixed assets and leasehold improvements, inventory and
intangible assets to a franchisee of either Borrower or any of its
Subsidiaries.
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been
commenced:
(a) Liens for taxes, assessments and governmental charges or levies
to the extent not required to be paid under Section 5.01(b);
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations that (i) are not
overdue for a period of more than 30 days and (ii) either individually or
when aggregated with all other Permitted Liens outstanding on any date of
determination, do not adversely affect the use or value of a material
amount of the Borrowers' and their Subsidiaries' properties that are being
refurbished and constructed;
(c) pledges or deposits under workers' compensation laws,
unemployment insurance laws or similar legislation or good faith deposits
in connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases, or deposits to secure public or statutory
obligations;
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(d) Liens arising out of judgments or awards under appeal or other
proceedings for review to the extent such Liens do not constitute an Event
of Default; and
(e) easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property for
its present purposes.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"PIK Preferred Stock" means the Series A Preferred Stock of GNI.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Preferred Stock" means, with respect to any corporation, capital stock
issued by such corporation that is entitled to a preference or priority over
any other capital stock issued by such corporation upon any distribution of
such corporation's assets, whether by dividend or upon liquidation.
"Pro Rata Share" of any amount means, with respect to any Lender at any
time, the product of (a) a fraction the numerator of which is the amount of
such Lender's Revolving Credit Commitment at such time and the denominator of
which is the Revolving Credit Facility at such time multiplied by (b) such
amount.
"Qualifying Shares" means, with respect to any Subsidiary organized
outside of the United States, any qualifying ownership shares or similar
ownership interests required by the applicable law of any such foreign
jurisdiction to be held by a resident of such foreign jurisdiction or by an
officer, employee or director of such Subsidiary.
"Redeemable" means, with respect to any capital stock, Indebtedness or
other right or Obligation, any such capital stock, Indebtedness, right or
Obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the control
of the issuer or (b) is redeemable at the option of the holder.
"Register" has the meaning specified in Section 8.07(c).
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"Related Documents" means the Tax Sharing Agreement and the Intercompany
Subordination Agreement.
"Required Lenders" means, at any time, Lenders owed or holding in the
aggregate at least 51% of the sum of (a) the then aggregate unpaid principal
amount of the Advances, (b) the then Unused Revolving Credit Commitments and
(c) the aggregate Available Amount of all Letters of Credit then outstanding.
For purposes of this definition, the Available Amount of each Letter of Credit
shall be considered to be owed to the Lenders ratably in accordance with their
Revolving Credit Commitments.
"Restatement Lenders" has the meaning specified in the recital of parties
to this Agreement.
"Revolving Credit Advance" has the meaning specified in Section 2.01(b).
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by the Lenders.
"Revolving Credit Commitment" means, with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Revolving Credit Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, the amount set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.07(c) as such Lender's "Revolving Credit Commitment", as such amount
may be reduced at or prior to such time pursuant to Section 2.03.
"Revolving Credit Facility" means, at any time, the aggregate amount of
the Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Note" means an amended and restated promissory note of a
Borrower payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of such Borrower to
such Lender resulting from Revolving Credit Advances made by such Lender.
"Rolling Period" means in respect of any Fiscal Quarter, such Fiscal
Quarter and the three preceding Fiscal Quarters.
"SEC" means the Securities and Exchange Commission.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
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"Single Employer Plan" means, with respect to any Person, a single
employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of such Person or any of its ERISA Affiliates and no
Person other than such Person and its ERISA Affiliates or (b) was so maintained
and in respect of which such Person or any of its ERISA Affiliates could
reasonably be expected to have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on any date of
determination, 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
saleable 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 matured, (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 in a transaction, and is not about to engage in business
or in a transaction, for which such Person's property would constitute
unreasonably small capital.
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
"Store Operating Lease Expense" means all operating lease expenses and
rents in connection with retail stores of GNCI and its Subsidiaries, including
base rents and percentage rents.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (a) the issued
and outstanding capital stock having ordinary voting power to elect a majority
of the Board of Directors of such corporation (irrespective of whether at the
time capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership or joint venture or (c)
the beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Subsidiary Guarantors" means GNC, GNP, GNIC, GNS, GNF, GNII, GNCIH, GNG,
GNCL, GNCC, GNCUK, GND, NFC, NFCI, NFN, VSS and any other Subsidiary of either
GNC or GNI that enters into a guaranty pursuant to Section 5.01(m).
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"Swing Line Advance" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.01(c) or (b) any Lender pursuant to Section 2.02(b).
"Swing Line Bank" means BNP.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section 2.01(c).
"Swing Line Note" means a promissory note of a Borrower payable to the
order of the Swing Line Bank, in substantially the form of Exhibit A-3 hereto,
evidencing the aggregate indebtedness of such Borrower to the Swing Line Bank
resulting from the Swing Line Advances made by the Swing Line Bank.
"Syndication Agents" has the meaning set forth in the recital of parties
to this Agreement.
"Tax Sharing Agreement" means the Tax Sharing Agreement among GNCI, the
Borrowers and each of the Borrowers' Subsidiaries executed prior to the initial
Borrowing hereunder, as in effect on the Fourth Restatement Date.
"Taxes" has the meaning specified in Section 2.11(a).
"Termination Date" means the earlier of March 31, 2002 and the date of
termination in whole of the Commitments pursuant to Section 2.03 or 6.01.
"Total Adjusted Debt" means, at any date of determination, the aggregate
amount of all outstanding and other undrawn commitments to provide Indebtedness
to the Borrowers or its Foreign Subsidiaries pursuant to Sections 5.02(b)(i)(A)
and 5.02(b)(iv)(B), respectively, and all other Indebtedness of the type
permitted by Section 5.02(b) outstanding at such time, other than the
Indebtedness referred to in Sections 5.02(b)(i)(D), 5.02(b)(ii), 5.02(b)(iii),
5.02(b)(v)(A) and 5.02(b)(vii).
"Total Debt" means, at any date of determination, Indebtedness of the type
permitted by Section 5.02(b) outstanding at such time, other than the
Indebtedness referred to in Sections 5.02(b)(i)(D), 5.02(b)(ii), 5.02(b)(iii),
5.02(b)(v)(A) and 5.02(b)(vii).
"Trade Letter of Credit" means any Letter of Credit that is issued under
the Letter of Credit Facility for the benefit of a supplier of inventory or
equipment to the
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Borrowers or any of their respective Subsidiaries to effect payment for such
inventory or equipment.
"Trade Letter of Credit Agreement" has the meaning specified in
2.13(b)(i).
"Type" refers to the distinction between Advances bearing interest at the
Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to any Lender at
any time, (a) such Lender's Revolving Credit Commitment at such time less (b)
the sum of (i) the aggregate principal amount of all Revolving Credit Advances,
Letter of Credit Advances and Swing Line Advances made by such Lender and
outstanding at such time and (ii) such Lender's Pro Rata Share of (A) the
aggregate principal amount of all Swing Line Advances made by the Swing Line
Bank pursuant to Section 2.02(b) and outstanding at such time, other than any
such Swing Line Advance that, at or prior to such time, has been assigned in
part to, and made by, such Lender pursuant to Section 2.02(b), (B) the
aggregate Available Amount of all Letters of Credit outstanding at such time
and (C) the aggregate principal amount of all Letter of Credit Advances made by
the Issuing Bank pursuant to Section 2.13(c) and outstanding at such time,
other than any such Letter of Credit Advance that, at or prior to such time,
has been assigned in part to, and made by, such Lender pursuant to Section
2.13(c).
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even though the right so
to vote has been suspended by the happening of such a contingency.
"VSS, Inc." means VSS, a Massachusetts corporation.
"Welfare Plan" means, with respect to any Person, a welfare plan, as
defined in Section 3(1) of ERISA (other than a multiemployer plan, as defined
in Section 3(37) of ERISA), maintained for employees of such Person.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E
of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" both
mean "to but excluding".
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SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles in the United States consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(f)
("GAAP").
SECTION 1.04. Currency Equivalents Generally. The equivalent in any
Foreign Currency of an amount in Dollars shall be determined at the rate of
exchange quoted by BNP in New York City, at 9:00 A.M. (New York City time) on
the date of determination, to prime banks in New York City for the spot
purchase in the New York foreign exchange market of such amount of Dollars with
such Foreign Currency.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) Purchase of Assignments. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to
purchase and assume on the Fourth Restatement Date an undivided interest in the
rights and obligations of the Existing Lenders under the Existing Credit
Agreement in an amount up to such Lender's Pro Rata Share of the aggregate of
the Revolving Credit Commitments hereunder, such purchase to be effected by
payment to the Administrative Agent for the account of the Existing Lenders of
an amount equal to such Lender's Pro Rata Share of the aggregate principal
amount of the "Revolving Credit Advances" under the Existing Credit Agreement,
and all accrued interest and commitment fees under the Existing Credit
Agreement through the Fourth Restatement Date. Such purchase shall be made on
such notice, and otherwise on such terms, as are provided under this Agreement
as though such purchase were a Borrowing hereunder. The "Revolving Credit
Advances" so purchased shall be redesignated Revolving Credit Advances
hereunder. In furtherance of the foregoing, each Lender hereby authorizes and
directs the Administrative Agent to accept the Assignment Agreement on behalf
of the Lenders.
(b) Revolving Credit Advances. Each Lender severally agrees, on the terms
and conditions hereinafter set forth, to make advances (the "Revolving Credit
Advances") to the Borrowers from time to time on any Business Day during the
period from the Fourth Restatement Date until the Termination Date in an amount
for each such Revolving Credit Advance not to exceed such Lender's Unused
Revolving Credit Commitment on such Business Day. Each Revolving Credit
Borrowing shall be in an aggregate amount of $3,000,000 or an integral multiple
of $100,000 in excess thereof and shall consist of Revolving Credit Advances
made by the Lenders ratably according to their Revolving Credit Commitments.
Within the limits of each Lender's Unused Revolving
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Credit Commitment in effect from time to time, the Borrowers may borrow under
this Section 2.01(b), prepay pursuant to Section 2.05(a) and reborrow under
this Section 2.01(b).
(c) The Swing Line Advances. The Borrowers may request the Swing Line Bank
to make, and the Swing Line Bank may, if in its sole discretion it elects to do
so, make, on the terms and conditions hereinafter set forth, Swing Line
Advances to the Borrowers from time to time on any Business Day during the
period from the Fourth Restatement Date until the Termination Date (i) in an
aggregate amount not to exceed at any time outstanding $10,000,000 (the "Swing
Line Facility") and (ii) in an amount for each such Advance not to exceed the
aggregate of the Unused Revolving Credit Commitments of the Lenders on such
Business Day. No Swing Line Advance shall be used for the purpose of funding
the payment of principal of any other Swing Line Advance. Each Swing Line
Borrowing shall be in an amount of $500,000 or an integral multiple of $100,000
in excess thereof and shall consist of a Base Rate Advance, which shall accrue
interest at a rate per annum of the Base Rate minus 0.75%. Within the limits of
the Swing Line Facility and within the limits referred to in clause (ii) above,
so long as the Swing Line Bank, in its sole discretion, elects to make Swing
Line Advances, the Borrowers may borrow under this 2.01(c), prepay pursuant to
Section 2.05(a) and reborrow under this Section 2.01(c).
SECTION 2.02. Making the Advances. (a) Each Borrowing other than a Swing
Line Borrowing shall be made on notice, given not later than (A) 12:00 noon
(New York City time) on the first Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
(B) 12:00 noon (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar
Rate Advances by the relevant Borrower to the Administrative Agent, which shall
give to each Appropriate Lender prompt notice thereof by telex, telecopier or
cable. Each such notice of a Borrowing (a "Notice of Borrowing") shall be by
telex, telecopier or cable, in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing (which shall be a
Business Day), (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing and (iv) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance. In the
case of a proposed Borrowing comprised of Eurodollar Rate Advances, the
Administrative Agent shall promptly notify each Appropriate Lender of the
applicable interest rate under Section 2.06(a)(ii). Each Appropriate Lender
shall, before 12:00 noon (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's Pro Rata Share of such Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower giving the Notice of Borrowing by crediting the GNI
Borrower Account or the GNC Borrower Account, as appropriate.
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(b) Each Swing Line Borrowing shall be made on notice, given not later
than 12:00 noon (New York City time) on the date of the proposed Swing Line
Borrowing, by the relevant Borrower to the Swing Line Bank and the
Administrative Agent. Each such notice of a Swing Line Borrowing (a "Notice of
Swing Line Borrowing") shall be by telex or telecopier, in substantially the
form of Exhibit B hereto, except that any such Notice of Swing Line Borrowing
shall only designate a Base Rate Advance, specifying therein the requested (i)
date of such Borrowing (which shall be a Business Day), (ii) amount of such
Borrowing and (iii) maturity of such Borrowing (which maturity shall be no
later than the seventh day after the requested date of such Borrowing). If, in
its sole discretion, it elects to make the requested Swing Line Advance, the
Swing Line Bank will make the amount thereof available to the Administrative
Agent at the Administrative Agent's Account, in same day funds. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the relevant Borrower by crediting the GNI
Borrower Account or the GNC Borrower Account, as appropriate. Upon written
demand by the Swing Line Bank, with a copy of such demand to the Administrative
Agent, each other Lender shall purchase from the Swing Line Bank, and the Swing
Line Bank shall sell and assign to each such other Lender, such other Lender's
Pro Rata Share of such outstanding Swing Line Advance as of the date of such
demand, by making available for the account of its Applicable Lending Office to
the Administrative Agent for the account of the Swing Line Bank, by deposit to
the Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Swing Line Advance to be
purchased by such Lender. The Borrowers hereby agree to each such sale and
assignment. Each Lender agrees to purchase its Pro Rata Share of an outstanding
Swing Line Advance on (i) the Business Day on which demand therefor is made by
the Swing Line Bank, provided that notice of such demand is given not later
than 12:00 noon (New York City time) on such Business Day or (ii) the first
Business Day next succeeding such demand if notice of such demand is given
after such time. Upon any such assignment by the Swing Line Bank to any other
Lender of a portion of a Swing Line Advance, the Swing Line Bank represents and
warrants to such other Lender that the Swing Line Bank is the legal and
beneficial owner of such interest being assigned by it, but makes no other
representation or warranty and assumes no responsibility with respect to such
Swing Line Advance, the Loan Documents or any Loan Party. If and to the extent
that any Lender shall not have so made the amount of such Swing Line Advance
available to the Administrative Agent, such Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Swing Line Bank until the
date such amount is paid to the Administrative Agent, at the Federal Funds
Rate. If such Lender shall pay to the Administrative Agent such amount for the
account of the Swing Line Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Swing Line Advance made by such Lender
on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by the Swing Line Bank shall be
reduced by such amount on such Business Day.
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(c) Anything in subsection (a) to the contrary notwithstanding, (i) no
Borrower may select Eurodollar Rate Advances (1) for the initial Borrowing
hereunder, (2) for any Borrowing if the aggregate amount of such Borrowing is
less than $10,000,000 or (3) if the obligation of the Appropriate Lenders to
make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.09
and (ii) the Eurodollar Advances may not be outstanding as part of more than
eight separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be
irrevocable and binding on the relevant Borrower. In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrowers jointly and severally hereby agree to indemnify
each Appropriate Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing when such Advance, as a result of
such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative
Agent may, in reliance upon such assumption, make available to the relevant
Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrowers severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the relevant Borrower until the date such amount is repaid or paid
to the Administrative Agent, at (i) in the case of the Borrowers, the interest
rate applicable at such time under Section 2.06 to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid in respect of principal shall constitute such Lender's Advance
as part of such Borrowing for purposes of this Agreement.
(f) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
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SECTION 2.03. Repayment. (a) Revolving Credit Advances. Each Borrower
hereby agrees to repay to the Administrative Agent for the ratable account of
the Lenders on the Termination Date the aggregate outstanding principal amount
of the Revolving Credit Advances borrowed by it.
(b) Swing Line Advances. Each Borrower hereby agrees to repay to the
Administrative Agent, for the account of the Swing Line Bank and each other
Lender which has made a Swing Line Advance to it, the outstanding principal
amount of each Swing Line Advance made by each of them on the earlier of the
maturity date specified in the applicable Notice of Swing Line Borrowing (which
maturity shall be no later than the seventh day after the requested date of
such Borrowing) and the Termination Date.
(c) Letter of Credit Advances. Each Borrower hereby agrees to repay to the
Administrative Agent, for the account of each Issuing Bank and each Lender that
has made a Letter of Credit Advance to it, the outstanding amount of each
Letter of Credit Advance made by each of them on demand.
SECTION 2.04. Optional Reduction of the Commitments. The Borrowers may,
upon at least three Business Days' notice to the Administrative Agent,
terminate in whole or reduce ratably in part the unused portion of the
Commitments of the Lenders without premium or penalty; provided, however, that
each partial reduction shall be in an aggregate amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof.
SECTION 2.05. Prepayments. (a) Optional. Each Borrower may, upon at least
one Business Day's notice to the Administrative Agent stating the proposed date
and the aggregate principal amount of the prepayment, and if such notice is
given such Borrower agrees to, prepay, without premium or penalty, the
aggregate principal amount of the Advances comprising part of the same
Borrowings in whole or ratably in part on the aggregate principal amount
prepaid; provided, however, that (i) each partial prepayment shall be in an
aggregate principal amount of $3,000,000 or an integral multiple of $100,000 in
excess thereof and (ii) no such prepayment of a Eurodollar Rate Advance shall
be made other than on the last day of an Interest Period therefor.
(b) Mandatory. (i) The Borrowers jointly and severally agree to prepay, on
each Business Day, an aggregate principal amount of the Revolving Credit
Advances comprising part of the same Borrowings and the Swing Line Advances
equal to the amount by which (A) the sum of the aggregate principal amount of
the Revolving Credit Advances, plus the Swing Line Advances, plus the Letter of
Credit Advances, plus the aggregate Available Amount of all Letters of Credit,
each then outstanding exceeds (B) the Revolving Credit Facility on such
Business Day.
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(ii) The Borrowers jointly and severally agree to pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account, on each
Business Day, an amount sufficient to cause the aggregate amount on deposit in
such L/C Cash Collateral Account to equal the amount by which the aggregate
Available Amount of all Letters of Credit then outstanding exceeds the Letter
of Credit Facility on such Business Day.
(iii) Prepayments of the Revolving Credit Facility made pursuant to clause
(i) above shall be first applied to prepay Letter of Credit Advances then
outstanding until such Advances are paid in full, second applied to prepay
Swing Line Advances then outstanding until such Advances are paid in full,
third applied to prepay Revolving Credit Advances then outstanding comprising
part of the same Borrowings until such Advances are paid in full and fourth
deposited in the L/C Cash Collateral Account to cash collateralize 105% of the
Available Amount of the Letters of Credit then outstanding. Upon the drawing of
any Letter of Credit for which funds are on deposit in the L/C Cash Collateral
Account, such funds shall be applied to reimburse the Issuing Bank or Lenders,
as applicable.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrowers jointly and
severally agree to pay interest on the unpaid principal amount of each Advance
owing to each Lender from the date of such Advance until such principal amount
shall be paid in full at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (i) the Base Rate
in effect from time to time plus (ii) the Applicable Margin in effect from
time to time, payable quarterly in arrears from the Fourth Restatement Date
on the last Business Day of each March, June, September and December during
such periods, commencing on June 30, 1997, and on the Termination Date.
(ii) Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (i) the Eurodollar Rate for
such Interest Period for such Advance plus (ii) the Applicable Margin in
effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period.
(b) Default Interest. Upon the occurrence and during the continuance of a
Default under Section 6.01(e) or of an Event of Default and upon the request of
the Administrative Agent or the Required Lenders, the Borrowers jointly and
severally agree to pay interest on (i) the unpaid principal amount of each
Advance owing to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to
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be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and
(ii) the amount of any interest, fee or other amount payable hereunder that is
not paid when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount shall be paid
in full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on Base Rate Advances pursuant to
clause (a)(i) above.
SECTION 2.07. Fees. (a) Commitment Fee. The Borrowers jointly and
severally hereby agree to pay to the Administrative Agent for the account of
the Lenders a commitment fee on each Appropriate Lender's average daily Unused
Revolving Credit Commitment from the Fourth Restatement Date in the case of
each Restatement Lender and from the effective date specified in the Assignment
and Acceptance pursuant to which it became a Lender in the case of each other
Lender until the Termination Date, payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing on June
30, 1997, and on the Termination Date, at a rate per annum equal to the
Applicable Percentage in effect from time to time.
(b) Agents' Fees. The Borrowers jointly and severally agree to pay to each
Agent for its own account such fees as may from time to time be agreed upon
between the Borrowers and such Agent.
(c) Letter of Credit Commission. The Borrowers jointly and severally agree
to pay to the Administrative Agent for the account of each Lender a commission
on such Lender's Pro Rata Share of the average daily aggregate Available Amount
of all Letters of Credit outstanding from the Fourth Restatement Date and from
time to time thereafter, payable quarterly in arrears on the last Business Day
of each March, June, September and December commencing on June 30, 1997, and on
the Termination Date, at a rate per annum equal to the Applicable Margin in
effect from time to time.
(d) Letter of Credit Fee. The Borrowers jointly and severally agree to pay
to the Issuing Bank for its own account a fee on the average daily aggregate
Available Amount on all Letters of Credit outstanding and issued by the Issuing
Bank from the Fourth Restatement Date and from time to time thereafter at the
rate per annum equal to 0.250%, payable quarterly in arrears on the last
Business Day of each March, June, September and December commencing on June 30,
1997, and on the Termination Date.
(e) Letter of Credit Expenses. The Borrowers jointly and severally agree
to pay to the Issuing Bank, for its own account, such transfer fees and other
fees and charges in connection with the issuance or administration of each
Letter of Credit as such Borrowers and the Issuing Bank shall agree.
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SECTION 2.08. Conversion of Advances. (a) Optional. Any Borrower may on
any Business Day, upon notice given to the Administrative Agent not later than
12:00 noon (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Section 2.09, Convert
all or any portion of the Advances owing by such Borrower of one Type
comprising the same Borrowing into Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into Base Rate
Advances shall be made on, and only on, the last day of an Interest Period for
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(c) and no Conversion of any Advances shall result in
more separate Borrowings than permitted under Section 2.02(c). Each such notice
of Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion (which shall be a Business Day), (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the relevant Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(ii) If any Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in Section 2.02, the Administrative Agent will forthwith so notify
such Borrower and the Appropriate Lenders, whereupon each such Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest
Period therefor Convert into a Base Rate Advance.
SECTION 2.09. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance after the date hereof
with any guideline or request from any central bank or other governmental
authority (whether or not having the force of law), there shall be any increase
in the cost to any Lender of agreeing to make or of making, funding or
maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or
maintaining Letters of Credit or of agreeing to make or of making or
maintaining Letter of Credit Advances, then, upon demand by such Lender (with a
copy of such demand to the Administrative Agent), the Borrowers jointly and
severally hereby agree to pay to the Administrative Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that the Borrowers shall jointly and
severally be obligated to make such payment only if such Lender has given, or
has caused the Administrative Agent to give, notice to the Borrowers of the
facts or circumstances giving rise to such increased cost within ninety (90)
days after such Lender shall have itself received actual knowledge thereof. A
certificate as to the amount of such
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increased cost, submitted to the Borrowers by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by the
existence of such Lender's commitment to lend, or the Issuing Bank's commitment
to issue Letters of Credit, hereunder and other commitments of such type or the
issuance or maintenance of the Letters of Credit (or similar contingent
obligations), then, upon demand by such Lender (with a copy of such demand to
the Administrative Agent), the Borrowers jointly and severally hereby agree to
pay to the Administrative Agent for the account of such Lender, from time to
time as specified by such Lender, additional amounts sufficient to compensate
such Lender in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend, or the Issuing Bank's commitment to issue
Letters of Credit, hereunder or to the issuance or maintenance of any Letters
of Credit; provided that such additional amounts shall not include compensation
for any additional amounts arising from circumstances occurring more than 180
days prior to the date of such demand. A certificate as to such amounts,
submitted to the Borrowers by such Lender, shall be conclusive and binding for
all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances, Lenders owed at
least 51% of the then aggregate unpaid principal amount thereof notify the
Administrative Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Lenders of making,
funding or maintaining their Eurodollar Rate Advances for such Interest Period,
the Administrative Agent shall forthwith so notify the Borrowers and the
Appropriate Lenders, whereupon (i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of such Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrowers that such Lenders
have determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrowers
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand,
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Convert into a Base Rate Advance and (ii) the obligation of the Appropriate
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrowers that such
Lender has determined that the circumstances causing such suspension no longer
exist.
(e) Upon the occurrence and during the continuance of any Event of Default
or a Default under Section 6.01(e), (i) each Eurodollar Rate Advance will
automatically Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.10. Payments and Computations. (a) The Borrowers shall make each
payment hereunder and under the Notes, not later than 12:00 noon (New York City
time) on the day when due in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if such payment is
in respect of principal, interest, commitment fees or any other Obligation then
due and payable hereunder or under any of the Notes to more than one Lender, to
such Lenders for the account of their respective Applicable Lending Offices
ratably in accordance with the amounts of such respective Obligations then
payable to such Lenders and (ii) if such payment is in respect of any
Obligation then due and payable hereunder or under any of the Notes to one
Lender, to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon
its acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(c), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) Each Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note or
Notes held by such Lender, to charge from time to time against any or all of
such Borrower's accounts with such Lender any amount so due.
(c) All computations of interest and fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest and fees are payable. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.
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(d) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the immediately
preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from any
Borrower prior to the date on which any payment is due to any Lender hereunder
or under the Notes that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each such Lender
on such due date an amount equal to the amount then due such Lender. If and to
the extent any Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.11. Taxes. (a) Any and all payments by the Borrowers hereunder
or under the Notes shall be made, in accordance with Section 2.10, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative Agent,
overall net income taxes that are imposed by the United States on such Lender
or the Administrative Agent and overall net income taxes (or franchise taxes in
lieu thereof) that are imposed on such Lender or the Administrative Agent by
the state or foreign jurisdiction under the laws of which such Lender or the
Administrative Agent, as the case may be, is organized or any political
subdivision thereof and, in the case of each Lender, overall net income taxes
(or franchise taxes in lieu thereof) that are imposed on such Lender by the
state or foreign jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrowers shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.11) such Lender and
the Administrative Agent, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrowers
shall make such deductions and (iii) the Borrowers shall pay the full amount
deducted to the relevant taxation authority or other governmental authority in
accordance with applicable law.
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(b) In addition, the Borrowers jointly and severally hereby agree to pay
any present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies that arise from any payment made
hereunder or under the Notes or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement or the Notes (hereinafter
referred to as "Other Taxes").
(c) The Borrowers jointly and severally indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes, and for the
full amount of taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 2.11, paid by such Lender or the Administrative Agent, as
the case may be, and any liability (including penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or the
Administrative Agent, as the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrowers
will furnish to the Administrative Agent, at its address referred to in Section
8.02, appropriate evidence of payment thereof. If no Taxes are payable in
respect of any payment hereunder or under the Notes by the Borrowers through an
account or branch outside the United States or on behalf of the Borrowers by a
payor that is not a United States person, the Borrowers will furnish, or will
cause such payor to furnish, to the Administrative Agent, at such address, a
certificate from the appropriate taxing authority or authorities, or an opinion
of counsel acceptable to the Administrative Agent, in either case stating that
such payment is exempt from or not subject to Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States shall, on or prior to the date of its execution and delivery of
this Agreement in the case of each Restatement Lender, and on the date of the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender, and from time to time thereafter if requested in writing by
the Borrowers or the Administrative Agent (but only so long thereafter as such
Lender remains lawfully able to do so), provide the Administrative Agent and
the Borrowers with Internal Revenue Service form 1001 or 4224, as appropriate
(or any successor form prescribed by the Internal Revenue Service), certifying
that such Lender is exempt from or is entitled to a reduced rate of United
States withholding tax on payments under this Agreement or the Notes, or
certifying that the income receivable by such Lender under this Agreement or
the Notes is effectively connected with the conduct of a trade or business of
such Lender in the United States. To the extent a Lender fails to provide to
the Borrowers at the time such Lender first becomes a party to this Agreement
Internal Revenue Service forms that establish a United States withholding tax
rate of zero, withholding tax at the initially required rate shall be
considered excluded from Taxes unless and until such Lender provides the
appropriate form certifying that a lesser rate applies,
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whereupon withholding tax at such lesser rate only shall be considered excluded
from Taxes for periods governed by such form. If after the date of an
Assignment and Acceptance pursuant to which a Lender assignee becomes a party
to this Agreement, the Borrowers shall become obligated to gross-up payments to
or to indemnify the assignee pursuant to this Section 2.11, such gross-up or
indemnity obligation to such assignee shall be no greater than the
corresponding obligation the Borrowers would have had absent such Assignment
and Acceptance. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form 1001 or 4224, that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the Borrowers and shall
not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has failed to provide
the Borrowers with the appropriate form described in subsection (e) above
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender shall not be
entitled to gross-up or indemnification under subsection (a) or (c) above with
respect to Taxes imposed by the United States; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrowers shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.
(g) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.11 shall survive the payment in full of principal and
interest hereunder and under the Notes.
SECTION 2.12. Sharing of Payments, Etc. If any Lender shall obtain at any
time any payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of the Obligations of the Borrowers
to such Lender hereunder and under the Notes in excess of (a) its ratable share
(according to the proportion of (i) the amount of such Obligations due and
payable to such Lender at such time to (ii) the aggregate amount of the
Obligations of the Borrowers due and payable to all Lenders hereunder and under
the Notes at such time) of payments on account of the Obligations due and
payable to all Lenders hereunder and under the Notes at such time obtained by
all the Lenders at such time or (b) if no such Obligations are due and payable
at such time, its ratable share (according to the proportion of (A) the amount
of such Obligations of the Borrowers to such Lender at such time to (B) the
aggregate amount of the Obligations of the Borrowers to all Lenders hereunder
and under the Notes at such time) of payments on account of the Obligations of
the Borrowers to all Lenders hereunder and under the Notes at such time
obtained by all Lenders at such time, such Lender shall forthwith purchase from
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the other Lenders such participations in the Obligations of the Borrowers
hereunder and under the Notes owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each other
Lender shall be rescinded and such other Lender shall repay to the purchasing
Lender the purchase price to the extent of such other Lender's ratable share
(according to the proportion of (1) the purchase price paid to such Lender to
(2) the aggregate purchase price paid to all Lenders) of such recovery together
with an amount equal to such Lender's ratable share (according to the
proportion of (x) the amount of such other Lender's required repayment to (y)
the total amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrowers agree that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.12 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of setoff) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrowers in the amount of such
participation.
SECTION 2.13. Letters of Credit. (a) The Letter of Credit Facility.
Pursuant to the Existing Credit Agreement, BNP has issued Letters of Credit in
connection with transactions in the ordinary course of the business of the
Borrowers (such Letters of Credit as are outstanding on the Fourth Restatement
Date under the Existing Credit Agreement and set forth on Schedule II being the
"Existing Letters of Credit") for the account of the Borrowers. Effective as of
the Fourth Restatement Date, each Existing Letter of Credit shall be deemed to
be a Letter of Credit under this Agreement and each "Lender" under the Existing
Credit Agreement will be deemed to have sold and transferred an undivided
interest and participation in respect of the Existing Letters of Credit and
each Lender will be deemed to have purchased and received, without further
action on the part of any party, an undivided interest and participation in
such Existing Letters of Credit, based upon such Lender's Pro Rata Share of its
Revolving Credit Commitment under this Agreement. Any such interest and
participation so purchased shall automatically become an undivided interest and
participation in such Letters of Credit. In addition, the Issuing Bank
severally agrees, on the terms and conditions hereinafter set forth, to issue
Standby Letters of Credit and Trade Letters of Credit for the account of the
Borrowers from time to time on any Business Day from the Fourth Restatement
Date until 31 days before the Termination Date in an amount equal to the lesser
of (i) an aggregate Available Amount for all Letters of Credit (together with
the Existing Letters of Credit, the "Letters of Credit") then outstanding not
to exceed at any time the amount set forth opposite the Issuing Bank's name on
Schedule I under the caption "Letter of Credit Commitment" (such amount being
the Issuing Bank's "Letter of Credit Commitment"), provided that the aggregate
Available Amount of all Letters of Credit outstanding shall in no event exceed
the lesser of $20,000,000 and the amount of the Revolving Credit Facility (the
amount of the Letter of Credit Commitment of the Issuing Bank, as so limited,
being the "Letter of Credit Facility") and (ii) an Available Amount for
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each such Letter of Credit not to exceed the Unused Revolving Credit
Commitments of the Lenders on such Business Day. Each Lender's Revolving Credit
Commitment shall be deemed utilized by an amount equal to such Lender's Pro
Rata Share of the Available Amount of each Letter of Credit then outstanding.
No Letter of Credit shall have an expiration date (including all rights of the
Borrowers or the beneficiary to require renewal) later than the earlier of 30
days before the Termination Date and, in the case of a Standby Letter of
Credit, one year after the date of issuance thereof, but may by its terms be
renewable annually with the consent of the Issuing Bank, and in the case of a
Trade Letter of Credit, 120 days after the date of issuance thereof. Within the
limits of the Letter of Credit Facility and subject to the limits referred to
above, the Borrowers may request the issuance of Letters of Credit under this
Section 2.13(a), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.13(c) and request the issuance of additional
Letters of Credit under this Section 2.13(a).
(b) Request for Issuance. (i) Each Standby Letter of Credit shall be
issued upon notice, given not later than 12:00 noon (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the relevant Borrower to the Issuing Bank, which shall give to the
Administrative Agent prompt notice thereof by telex, telecopier or cable. Each
Trade Letter of Credit shall be issued upon notice given in accordance with the
terms of any separate agreement between the Borrowers and the Issuing Bank
providing for the issuance of such Letter of Credit and containing terms and
conditions not inconsistent with this Agreement (a "Trade Letter of Credit
Agreement"). Each such notice of issuance of a Letter of Credit (a "Notice of
Issuance") shall be by telex, telecopier or cable, specifying therein the
requested (A) date of such issuance (which shall be a Business Day), (B)
Available Amount of such Letter of Credit, (C) expiration date of such Letter
of Credit, (D) name and address of the beneficiary of such Letter of Credit,
(E) form of such Letter of Credit and (F) aggregate Available Amount available
to be drawn under all Letters of Credit then outstanding. If the requested form
of such Standby Letter of Credit or Trade Letter of Credit is acceptable to the
Issuing Bank in its reasonable discretion, the Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make such
Standby Letter of Credit or Trade Letter of Credit available to the relevant
Borrower at its office referred to in Section 8.02 or as otherwise agreed with
the relevant Borrower in connection with such issuance.
(ii) The Issuing Bank shall furnish (A) to the Administrative Agent on the
first Business Day of each week, a written report summarizing issuance and
expiration dates of Letters of Credit issued by the Issuing Bank during the
previous week and drawings during such week under all Letters of Credit issued
by the Issuing Bank, (B) to the Administrative Agent and each Lender on the
first Business Day of each calendar quarter, a written report summarizing
issuance and expiration dates of Letters of Credit issued by the Issuing Bank
during the preceding calendar quarter and drawings during such calendar quarter
under all Letters of Credit issued by the Issuing Bank and a written report
setting
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forth the average daily aggregate Available Amount during the preceding
calendar quarter of all Letters of Credit issued by the Issuing Bank.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of a draft
drawn under any Letter of Credit shall constitute for purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft. Upon demand by the
Issuing Bank, each other Lender shall purchase from the Issuing Bank, and the
Issuing Bank shall sell and assign to each such other Lender, such other
Lender's Pro Rata Share of such outstanding Letter of Credit Advance as of the
date of such purchase, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the Issuing Bank,
by deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Letter of
Credit Advance to be purchased by such Lender. Each Lender agrees to purchase
its Pro Rata Share of an outstanding Letter of Credit Advance on (i) the
Business Day on which demand therefor is made by the Issuing Bank; provided
that notice of such demand is given not later than 12:00 noon (New York City
time) on such Business Day or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon any such
assignment by the Issuing Bank to any other Lender of a portion of a Letter of
Credit Advance, the Issuing Bank represents and warrants to such Lender that
the Issuing Bank is the legal and beneficial owner of such interest being
assigned by it, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan
Documents or any Loan Party. If and to the extent that any Lender shall not
have so made the amount of such Letter of Credit Advance available to the
Administrative Agent, such Lender agrees to pay to the Administrative Agent
forthwith on demand such amount, together with interest thereon, for each day
from the date of demand by the Issuing Bank until the date such amount is paid
to the Administrative Agent, at the Federal Funds Rate. If such Lender shall
pay to the Administrative Agent such amount for the account of the Issuing
Bank, such amount so paid in respect of principal shall constitute a Letter of
Credit Advance by such Lender for purposes of this Agreement and the
outstanding principal amount of the Letter of Credit Advance made by the
Issuing Bank shall be reduced by such amount.
(d) Indemnification; Obligations Absolute. (i) The Borrowers jointly and
severally hereby agree to indemnify the Issuing Bank, the Administrative Agent
and each other Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including, without
limitation, reasonable fees and expenses of counsel) that the Issuing Bank, the
Administrative Agent or such other Lender may incur or be subject to as a
consequence (direct, indirect or otherwise) of (i) the issuance of any Letter
of Credit or (ii) any action or proceeding relating to a court order,
injunction or other process or decree restraining or seeking to restrain the
Issuing Bank from making any Letter of Credit Advance, except to the extent
such claim, damage, loss, liability or expense is found in a final,
nonappealable judgment by a court of competent jurisdiction to have
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resulted from the Issuing Bank's, the Administrative Agent's or such other
Lender's gross negligence or willful misconduct.
(ii) In furtherance and not in limitation of the foregoing, the
Obligations of the Borrowers under this Agreement, any Trade Letter of Credit
Agreement and any other agreement or instrument relating to any Letter of
Credit (collectively, the "L/C Related Documents") shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of such
L/C Related Document under all circumstances, including, without limitation,
the following circumstances:
(A) any lack of validity or enforceability of any of the L/C Related
Documents;
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrowers in respect
of any L/C Related Document or any other amendment or waiver of or any
consent to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, setoff, defense or other right that
the Borrowers may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(E) payment by the Issuing Bank under any Letter of Credit against
presentation of a draft or certificate that does not comply with the terms
of such Letter of Credit;
(F) any exchange, release or nonperfection of any collateral or any
release, amendment or waiver of or consent to departure from the Fourth
Amended and Restated Parent Guaranty, the Fourth Amended and Restated
Subsidiary Guaranty or any other guaranty, for all or any of the
Obligations of the Borrowers in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the
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Borrowers or a guarantor (including, without limitation, GNCI or any
Subsidiary Guarantor).
SECTION 2.14. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrowers agree that they shall use such proceeds) in order
to (i) pay transaction fees and expenses in connection with the transactions
contemplated hereby, (ii) provide funds for the financing of capital
expenditures and acquisitions of businesses or product lines in the Health Care
Business and (iii) provide funds for other general corporate purposes permitted
by this Agreement.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Fourth Restatement Date. The
amendment and restatement of the Existing Credit Agreement pursuant hereto
shall become effective on and as of the date (the "Fourth Restatement Date"),
on which each of the following conditions precedent shall have been satisfied:
(a) The Assignment Agreement shall be in full force and effect and shall
not have been terminated and, pursuant thereto, the Commitments and Advances
(as defined in the Existing Credit Agreement) of each Existing Lender shall
have been sold and assigned to the Lenders hereunder on the terms and in the
amounts set forth in the Assignment Agreement and all accrued interest and
fees shall have been paid to the Existing Lenders.
(b) No Material Adverse Change shall have occurred since February 3, 1996.
(c) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of their properties, including
any Environmental Action, pending or to the best of the Borrowers'
knowledge, threatened before any court, governmental agency or arbitrator
that (i) could reasonably be expected to have a Material Adverse Effect, or
(ii) purports to affect the legality, validity or enforceability of this
Agreement, any Note, any other Loan Document, any Related Document or the
consummation of the transactions contemplated hereby.
(d) The Borrowers shall have paid to the Administrative Agent all
reasonable accrued fees of the Agents and the Restatement Lenders (including
the upfront fee to be paid with respect to this Agreement and the accrued
fees and expenses of counsel to the Administrative Agent).
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(e) All governmental and third party consents and approvals necessary in
connection with this Agreement shall have been obtained (without the
imposition of any conditions other than those that are reasonably acceptable
to the Administrative Agent) and shall remain in effect, and all applicable
waiting periods shall have expired without any action being taken by any
competent authority and no law or regulation shall be applicable, in the
reasonable judgment of the Administrative Agent, that restrains, prevents or
imposes adverse conditions upon this Agreement or any related transactions.
(f) The Administrative Agent shall have received on or before the Fourth
Restatement Date the following, each dated the Fourth Restatement Date
(unless otherwise specified), in form and substance reasonably satisfactory
to the Administrative Agent (unless otherwise specified) and (except for the
Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of
each Borrower and of each other Loan Party approving this Agreement, the
Notes, each other Loan Document and each Related Document to which it is
or is to be a party, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement, the Notes, each other Loan Document and each Related Document.
(iii) A copy of the charter of each Borrower and of each other Loan
Party and each amendment thereto, certified (as of a date reasonably near
the date of the initial Borrowing) by the Secretary of State of the State
of their respective states of incorporation or organization as being a
true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of State of the State
of their respective states of incorporation or organization, dated
reasonably near the Fourth Restatement Date, listing the charter or other
organizational documents of each Borrower and of each other Loan Party and
each amendment thereto on file in his office and certifying that (A) such
amendments are the only amendments to the Borrowers' or such other Loan
Party's charter or other organizational documents on file in his office,
(B) each Borrower and each other Loan Party have paid all franchise taxes
to the date of such certificate and (C) each Borrower and each other Loan
Party are duly incorporated or organized and in good standing under the
laws of the State of their respective states of incorporation or
organization.
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(v) A copy of a certificate of the Secretary of State of the
Commonwealth of Pennsylvania, dated reasonably near the Fourth Restatement
Date, stating that GNCI is duly qualified and in good standing as a
foreign corporation in such State and has filed all annual reports
required to be filed to the date of such certificate.
(vi) A certificate of each of the Borrowers and each other Loan
Party, signed on behalf of each Borrower or such other Loan Party by its
President or a Vice President and its Secretary or any Assistant
Secretary, dated the Fourth Restatement Date (the statements made in such
certificate shall be true on and as of the Fourth Restatement Date),
certifying as to (A) the absence of any amendments to the charter or other
organizational documents of such Borrower or such other Loan Party since
the date of the Secretary of State's certificate referred to in Section
3.01(f)(iv), (B) the truth and accuracy of the bylaws of such Borrower or
such other Loan Party as in effect on the Fourth Restatement Date (a copy
of which shall be attached to such certificate), (C) the due incorporation
or organization and good standing of such Borrower or such other Loan
Party as a corporation or business trust organized under the laws of the
State of its respective state of incorporation or organization, and the
absence of any proceeding for the dissolution or liquidation of such
Borrower or such other Loan Party, (D) the truth and accuracy of the
representations and warranties contained in the Loan Documents as though
made on and as of the Fourth Restatement Date and (E) the absence of any
event occurring and continuing, or resulting from the initial Borrowing,
that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary of
each Borrower and of each other Loan Party certifying the names and true
signatures of the officers of such Borrower and of such other Loan Party
authorized to sign this Agreement, the Notes, each other Loan Document and
each Related Document to which it is or is to be parties and the other
documents to be delivered hereunder and thereunder.
(viii) An amended and restated guaranty in substantially the form of
Exhibit D hereto (as amended, supplemented or otherwise modified from time
to time in accordance with its terms, the "Fourth Amended and Restated
Parent Guaranty"), duly executed by GNCI and GNI and an amended and
restated guaranty in substantially the form of Exhibit E hereto (as
amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "Fourth Amended and Restated Subsidiary
Guaranty"), duly executed by each Subsidiary Guarantor.
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(ix) Certified copies of each of the Related Documents, duly executed
by the parties thereto and in form and substance reasonably satisfactory
to the Administrative Agent, together with all agreements, instruments and
other documents delivered in connection therewith.
(x) Such financial, business and other information regarding the
Borrowers and each other Loan Party as the Administrative Agent shall have
reasonably requested, including, without limitation, (A) information as to
possible contingent liabilities, tax matters, environmental matters,
obligations under ERISA and under Plans, Multiemployer Plans, Welfare
Plans and collective bargaining agreements, (B) annual audited financial
statements for the Fiscal Year ended February 3, 1996 of GNCI, (C) interim
financial statements dated the end of the most recent Fiscal Quarter for
which financial statements of GNCI are available and (D) forecasts
prepared by management of GNCI, in form and substance satisfactory to the
Administrative Agent, of balance sheets, income statements and cash flow
statements on an annual basis through Fiscal Year 2001.
(xi) Certificates from the chief financial officer of GNCI, in form
and substance satisfactory to the Administrative Agent, attesting to the
Solvency of GNCI and its Subsidiaries, taken as a whole, immediately after
giving effect to the transactions contemplated hereby.
(xii) A letter, in form and substance reasonably satisfactory to the
Administrative Agent, from GNCI and the Borrowers to Deloitte & Touche,
its independent certified public accountants, advising such accountants
that the Administrative Agent and the Lenders have been authorized to
exercise all rights of GNCI and each Borrower to require such accountants
to disclose any and all financial statements and any other information of
any kind that they may have with respect to GNCI and each Borrower and its
Subsidiaries and directing such accountants to comply with any reasonable
request of the Administrative Agent or any Lender for such information.
(xiii) A favorable opinion of Xxxxxxxx, Xxxxxxx & Xxxxxxx, A
Professional Corporation, counsel for GNCI and each Borrower, in form and
substance satisfactory to the Administrative Agent, and addressing such
other matters as any Lender through the Administrative Agent may
reasonably request.
(xiv) A favorable opinion of in-house counsel of the Loan Parties
addressing issues under the laws of the Commonwealth of Pennsylvania, in
form and substance satisfactory to the Administrative Agent, and
addressing
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such other matters as any Lender through the Administrative Agent may
reasonably request.
(xv) A favorable opinion of Shearman & Sterling, counsel for the
Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance. The
obligation of each Appropriate Lender to make an Advance (other than a Letter
of Credit Advance and other than a Swing Line Advance made by a Lender pursuant
to Section 2.13(c) and Section 2.02(b), respectively) on the occasion of each
Borrowing (including the initial Borrowing), and the right of the Borrowers to
request a Swing Line Borrowing or the issuance of Letters of Credit, shall be
subject to the further conditions precedent that on the date of such Borrowing
or issuance (a) the following statements shall be true (and each of the giving
of the applicable Notice of Borrowing, Notice of Swing Line Borrowing or Notice
of Issuance and the acceptance by the relevant Borrower of the proceeds of such
Borrowing or such Letter of Credit shall constitute a representation and
warranty by such Borrower that on the date of such Borrowing or issuance such
statements are true):
(i) the representations and warranties contained in each Loan Document are
correct on and as of the date of such Borrowing or issuance, before and
after giving effect to such Borrowing or issuance and to the application of
the proceeds therefrom, as though made on and as of such date (other than
any such representations or warranties that, by their terms, are made as of
a date other than the date of such Borrowing or issuance); and
(ii) no event has occurred and is continuing, or would result from such
Borrowing or issuance or from the application of the proceeds therefrom,
that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative
Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the initial Borrowing specifying its objection thereto and such Lender
shall
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not have made available to the Administrative Agent such Lender's ratable
portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) Each Loan Party other than GND (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed, except where the failure to so qualify or be licensed would not
have a Material Adverse Effect and (iii) has all requisite corporate power
and authority to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted. All of the
outstanding capital stock of GNCI has been validly issued, is fully paid and
nonassessable. All of the outstanding capital stock of GNI has been validly
issued, is fully paid and nonassessable and is owned (other than the PIK
Preferred Stock), by GNCI, free and clear of all Liens. All of the
outstanding capital stock of GNC has been validly issued, is fully paid and
nonassessable and is owned by GNI, free and clear of all Liens. GND (i) is a
business trust duly organized and validly existing under the laws of the
Commonwealth of Pennsylvania, (ii) is duly qualified as a foreign business
trust in each other jurisdiction in which it owns or leases property or in
which the conduct of its business requires it to so qualify or be licensed,
except where the failure to so qualify or be licensed would not have a
Material Adverse Effect and (iii) has all requisite power and authority to
own or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted. The instrument organizing GND as
a business trust has been filed in the Department of State of the
Commonwealth of Pennsylvania and the sole beneficiaries of GND are GNS and
GNIC.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list
as of the Fourth Restatement Date of all Subsidiaries of each Loan Party,
showing as of the Fourth Restatement Date (as applicable and as to each such
Subsidiary) the jurisdiction of its incorporation or organization, the
number of shares of each class of capital stock authorized or the number of
certificates of beneficial ownership authorized, and the number outstanding,
on the Fourth Restatement Date and the percentage of the outstanding shares
of each such class or certificates of beneficial
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ownership owned (directly or indirectly) by such Loan Party and the number
of shares covered by all outstanding options, warrants, rights of conversion
or purchase and similar rights at the Fourth Restatement Date. All of the
outstanding capital stock or outstanding certificates of beneficial
ownership of each such Subsidiary have been validly issued, is fully paid
and nonassessable, as applicable, and is owned by such Loan Party or one or
more of its Subsidiaries free and clear of all Liens. Each such Subsidiary
(i) is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, (ii) is duly
qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the conduct of
its business requires it to so qualify or be licensed, except where the
failure to so qualify or be licensed would not have a Material Adverse
Effect and (iii) has all requisite corporate power and authority to own or
lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
(c) The execution, delivery and performance by each Loan Party other than
GND of this Agreement, the Notes, each other Loan Document and each Related
Document to which it is or is to be a party, and the consummation of the
transactions contemplated hereby, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action, and do
not (i) contravene such Loan Party's charter or bylaws, (ii) violate any law
(including, without limitation, the Securities Exchange Act and the
Racketeer Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970), rule, regulation (including, without limitation,
Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument binding on or affecting such Loan Party, any of
its Subsidiaries or any of their properties or (iv) result in or require the
creation or imposition of any Lien upon or with respect to any of the
properties of such Loan Party or any of its Subsidiaries. The execution,
delivery and performance by GND of each Loan Document and each Related
Document to which it is or is to be a party, and the consummation of the
transactions contemplated hereby, are within the powers of GND, have been
duly authorized by all necessary action by and consent of its trustees, and
do not (i) contravene GND's organizational documents or bylaws, (ii) violate
any law (including, without limitation, the Securities Exchange Act and the
Racketeer Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970), rule, regulation (including, without limitation,
Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument binding on or affecting such Loan Party, any
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of its Subsidiaries or any of their properties or (iv) result in or require
the creation or imposition of any Lien upon or with respect to any of the
properties of such Loan Party or any of its Subsidiaries. No Loan Party or
any of its Subsidiaries is in violation of any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award or in
breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which could
have a Material Adverse Effect.
(d) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other
third party is required for (i) the due execution, delivery, recordation,
filing or performance by any Loan Party of this Agreement, the Notes or any
other Loan Document or any Related Document to which it is or is to be a
party, or for the consummation of the transactions contemplated hereby, or
(ii) the exercise by any Agent or any Lender of its rights under the Loan
Documents.
(e) This Agreement has been, and each of the Notes, each other Loan
Document and each Related Document when delivered hereunder will have been,
duly executed and delivered by each Loan Party thereto. This Agreement is,
and each of the Notes, each other Loan Document and each Related Document
when delivered hereunder will be, the legal, valid and binding obligation of
each Loan Party party thereto, enforceable against such Loan Party in
accordance with its terms.
(f) The audited Consolidated balance sheet of GNCI and its Subsidiaries as
at February 3, 1996, and the related statements of income and cash flow of
GNCI and its Subsidiaries for the Fiscal Year then ended, accompanied by an
opinion of Deloitte & Touche, independent public accountants, and the
unaudited Consolidated balance sheet of GNCI and its Subsidiaries as at its
most recent ended Fiscal Quarter, and the related statements of income and
cash flow of GNCI and its Subsidiaries for the period covering February 3,
1996 to the end of its most recently ended Fiscal Quarter for which
financial statements are available, copies of which have been furnished to
each Lender, fairly present, subject, in the case of such balance sheet as
at its most recent ended Fiscal Quarter, and such statement of income and
cash flow for the period covering February 3, 1996 to the end of its most
recently ended Fiscal Quarter, to year-end audit adjustments and to the
absence of footnote disclosure, the financial condition of GNCI and its
Subsidiaries as at such dates and the Consolidated results of the operations
of GNCI and its Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied on a
consistent basis and on a basis consistent with the current practice of GNCI
and its Subsidiaries; and since February 3, 1996, there has been no Material
Adverse Change.
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(g) The Consolidated forecasted balance sheets, income statements and cash
flow statements of GNCI and its Subsidiaries delivered to the Lenders
pursuant to Section 3.01(f)(x) were prepared in good faith on the basis of
the assumptions stated therein, which assumptions were believed to be
reasonable in the light of conditions existing at the time of delivery of
such forecasts, and represented, at the time of delivery, GNCI's current
estimate of its future financial performance, it being recognized that such
forecasts do not constitute a warranty as to the future performance of GNCI
and its Subsidiaries and that actual results may vary from forecasted
results.
(h) No information, exhibit or report (including, without limitation, any
financial information, but excluding any forecasts referred to in clause (g)
above) furnished by or on behalf of any Loan Party to any Agent or any
Lender in connection with the negotiation of the Loan Documents or pursuant
to the terms of the Loan Documents contained any untrue statement of a
material fact or, taken as a whole, omitted to state a material fact
necessary to make the statements made therein not misleading, in each case,
as of the Fourth Restatement Date.
(i) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party, any of their Subsidiaries or any of their
properties, including any Environmental Action, pending or, to the best of
the Borrowers' knowledge, threatened before any court, governmental agency
or arbitrator that (i) would be reasonably likely to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability
of this Agreement, any Note, any other Loan Document or any Related Document
or the consummation of the transactions contemplated hereby.
(j) Following application of the proceeds of each Advance, not more than
25% of the value of the assets (either of each Borrower only or of each
Borrower and its Subsidiaries on a Consolidated basis) subject to the
provisions of Section 5.02(a) or 5.02(d) or subject to any restriction
contained in any other agreement or instrument between such Borrower and any
Lender or any Affiliate of any Lender relating to Indebtedness and within
the scope of Section 6.01(d) will be Margin Stock.
(k) Set forth on Schedule 4.01(k) is a complete and accurate list of all
Plans, Multiemployer Plans and Welfare Plans with respect to any employees
of any Loan Party or any of their Subsidiaries. Neither any Loan Party nor
any of its ERISA Affiliates maintains or has any obligation to contribute to
any Plan or Multiemployer Plan.
(l) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan of any Loan Party or any of its ERISA Affiliates.
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(m) Schedule B (Actuarial Information) to the most recent annual report
(Form 5500 Series) required to be filed with the Internal Revenue Service
for each Plan has been filed and a copy thereof has been furnished to the
Administrative Agent. Each such Schedule B is substantially complete and
accurate and fairly presents the funding status of such Plan, and since the
date of such Schedule B there has been no material adverse change in such
funding status.
(n) Neither any Loan Party nor any of its ERISA Affiliates has incurred or
is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan exceeding $500,000 or requiring payments exceeding
$250,000 per annum.
(o) Neither any Loan Party nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan of any Loan Party or any of
its ERISA Affiliates that such Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA, and no such
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA.
(p) The aggregate annualized cost (including, without limitation, the cost
of insurance premiums), if any, with respect to post-retirement benefits
under Welfare Plans for which the Loan Parties and their Subsidiaries are
liable does not exceed $250,000.
(q) Neither the business nor the properties of any Loan Party or any of
its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo,
act of God or of the public enemy or other casualty (whether or not covered
by insurance) that would be reasonably likely to have a Material Adverse
Effect.
(r) Except as set forth on Schedule 4.01(r), the operations and properties
of each Loan Party and each of its Subsidiaries comply in all material
respects with all Environmental Laws; all material Environmental Permits
have been obtained and are in effect for the operations and properties of
each Loan Party and its Subsidiaries; each Loan Party and its Subsidiaries
are in compliance in all material respects with all such Environmental
Permits; and no circumstances exist that could (i) form the basis of an
Environmental Action against any Loan Party or any of its Subsidiaries or
any of their properties that would be reasonably likely to have a Material
Adverse Effect or (ii) cause any such property to be subject to any material
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(s) Except as set forth on Schedule 4.01(s), none of the properties of any
Loan Party or any of its Subsidiaries is listed or to the knowledge of any
Loan Party
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proposed for listing on the National Priorities List under CERCLA or on the
Comprehensive Environmental Response, Compensation and Liability Information
System maintained by the Environmental Protection Agency or any analogous
state list of sites requiring investigation or cleanup, or is adjacent to any
such property; and no underground storage tanks, as such term is defined in
42 U.S.C. Section 6991, are located on any property of any Loan Party or any
of its Subsidiaries or, to the best of its knowledge, on any adjoining
property.
(t) Except as set forth on Schedule 4.01(t), neither any Loan Party nor
any of its Subsidiaries has transported or arranged for the transportation
of any Hazardous Materials to any location that is listed or proposed for
listing on the National Priorities List under CERCLA or on the Comprehensive
Environmental Response, Compensation and Liability Information System
maintained by the Environmental Protection Agency or any analogous state
list; Hazardous Materials have not been generated, used, treated, handled,
stored or disposed of on, or released or transported to or from, any
property of any Loan Party or any of its Subsidiaries or, to the best of its
knowledge, any adjoining property, except in material compliance with all
Environmental Laws and Environmental Permits; and all other wastes generated
at any such properties have been disposed of in compliance with all
Environmental Laws and Environmental Permits.
(u) Each Loan Party and each of its Subsidiaries have filed, have caused
to be filed or have been included in all tax returns (federal, state, local
and foreign) required to be filed or, in the case of income taxes, required
to be filed and where the failure to do so would cause the imposition of a
penalty or interest, and in each case have paid all taxes shown thereon to
be due, together with applicable interest and penalties.
(v) Neither any Loan Party nor any of its Subsidiaries is an "investment
company," an "affiliated person" of an "investment company", or a "promoter"
or "principal underwriter" for an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances nor the application of the proceeds therefrom or
repayment thereof by the Borrowers, nor the consummation of the transactions
contemplated hereby, will violate any provision of such Act or any rule,
regulation or order of the SEC thereunder.
(w) Each Loan Party is Solvent after giving effect to the transactions
contemplated hereby.
(x) Each Material Contract (i) has been duly authorized, executed and
delivered by each Loan Party party thereto and, to the best of the
Borrowers'
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knowledge, by all other parties thereto, is in full force and effect and is
binding upon and enforceable against all Loan Parties party thereto and to
the best of the Borrowers' knowledge, all other parties thereto in
accordance with its terms, (ii) has not been otherwise amended or modified
in such a manner that could be reasonably expected to materially adversely
affect the interest or rights of the Agents or the Lenders and (iii) there
exists no default under any Material Contract by any Loan Party or, to the
best of the Borrowers' knowledge, any other party thereto that could be
reasonably expected to materially adversely affect the interest or rights of
the Agents or the Lenders in any manner.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder, each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
to comply, in all material respects, with all applicable laws (including,
without limitation, Environmental Laws), rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA and the
Racketeer Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might by
law become a Lien upon its property, which in any case exceed in the
aggregate $500,000; provided, however, that neither the Borrowers nor any of
their respective Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge, levy or claim that is being contested in good faith
and by proper proceedings, diligently pursued, and as to which appropriate
reserves are being maintained, unless and until any Lien resulting therefrom
securing Indebtedness in excess of $500,000 in the aggregate attaches to its
property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons occupying its properties to
comply, in all material respects, with all Environmental Laws and
Environmental Permits applicable to its operations and properties; obtain
and renew all Environmental
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Permits necessary for its operations and properties; and conduct, and cause
each of its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws;
provided, however, that neither Borrower nor any of its Subsidiaries shall
be required to undertake any such cleanup, removal, remedial or other action
to the extent that its obligation to do so is being contested in good faith
and by proper proceedings, diligently pursued, and as to which appropriate
reserves are being maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried
by companies engaged in similar businesses and owning similar properties in
the same general areas in which such Borrower or such Subsidiary operates.
(e) Preservation of Corporate or Business Trust Existence, Etc. Preserve
and maintain, and cause each of its Subsidiaries to preserve and maintain,
as applicable, its corporate or business trust existence, rights (charter
and statutory) and franchises; provided, however, that the Subsidiaries of
each such Borrower may consummate any merger or consolidation permitted
under Section 5.02(c).
(f) Visitation Rights. At any reasonable time and from time to time upon
reasonable notice to a Borrower, permit the Administrative Agent or any of
the Lenders, or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and visit
the properties of, such Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of such Borrower and any of its
Subsidiaries with any of their officers, directors or trustees and with
their independent certified public accountants; provided that such Borrower
and any such Subsidiary shall have the right to have a representative of
such Borrower and such Subsidiary present during any discussions with their
independent public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall
be made of all financial transactions and the assets and business of such
Borrower and each such Subsidiary in accordance with GAAP.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause each
of its Subsidiaries to maintain and preserve, all of its properties that are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
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(i) Compliance with Terms of Leaseholds. Make all payments and otherwise
perform in all material respects all obligations in respect of all leases of
real property, in each case except to the extent that the failure to so act
could not reasonably be expected to have a Material Adverse Effect.
(j) Performance of Related Documents. (i) Perform and observe in all
material respects all the terms and provisions of each Related Document to
be performed or observed by it, maintain each such Related Document in full
force and effect and enforce in all material respects each such Related
Document in accordance with its terms, in each case except to the extent
that the failure to so act could not reasonably be expected to materially
adversely affect the interest or rights of the Administrative Agent or the
Lenders in any manner and take all such action to such end as may be from
time to time reasonably requested by the Administrative Agent and (ii) upon
the reasonable request of the Administrative Agent, make to each other party
to each such Related Document such demands and requests for information and
reports or for action as such Borrower is entitled to make under such
Related Document, and cause each of its Subsidiaries to do so.
(k) Performance of Material Contracts. (i) Perform and observe in all
material respects all the terms and provisions of each Material Contract to
be performed or observed by it, maintain each such Material Contract in full
force and effect and enforce in all material respects each such Material
Contract in accordance with its terms, in each case except to the extent
that the failure to so act could not reasonably be expected to materially
adversely affect the interest or rights of the Administrative Agent or the
Lenders in any manner and take all such action to such end as may be from
time to time reasonably requested by the Administrative Agent and (ii) upon
the reasonable request of the Administrative Agent, make to each other party
to each such Material Contract such demands and requests for information and
reports or for action as such Borrower is entitled to make under such
Material Contract, and cause each of its Subsidiaries to do so.
(l) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates on terms that are fair and reasonable
and no less favorable to such Borrower or such Subsidiary than it would
obtain in a comparable arm's-length transaction with a Person not an
Affiliate; provided, however, that the Borrowers and their respective
Subsidiaries may make payments required under the Tax Sharing Agreement and
the foregoing limitations shall not apply to transactions between or among
Loan Parties.
(m) Additional Loan Parties. Cause any Subsidiary (other than a Foreign
Subsidiary) of either GNC or GNI that has, either as at the end of any
Rolling Period
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or, in connection with any Investments permitted by Section 5.02(e)(i),
after giving effect to such Investment on a pro forma basis as at the end of
the immediately prior Rolling Period, EBITDA equal to or greater than 5% of
the Consolidated EBITDA of GNCI and its Subsidiaries, to execute and deliver
to the Administrative Agent as promptly as practicable (A) a guaranty
substantially in the form of Exhibit E hereto, and (B) such other documents,
certificates or instruments in connection with this Agreement as the
Administrative Agent may reasonably request, in each case in form and
substance reasonably satisfactory to the Administrative Agent, and to take
all such other actions that may be necessary or that the Administrative
Agent may deem reasonably desirable to enable the Administrative Agent to
exercise and enforce its rights and remedies thereunder; provided, however,
that with respect to any Person that becomes a Subsidiary (other than a
Foreign Subsidiary) in connection with a tender offer which is followed by a
back-end merger pursuant to a signed merger agreement, the Borrowers shall
cause such Subsidiary to comply with this Section 5.01(m) on the date that
the back-end merger becomes effective.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder, neither Borrower will:
(a) Liens, Etc. On and after the date of the initial Borrowing hereunder,
create, incur, assume or suffer to exist, or permit any of its Subsidiaries
to create, incur, assume or suffer to exist, any Lien on or with respect to
any of its properties of any character (including, without limitation,
accounts) whether now owned or hereafter acquired, or sign or file, or
permit any of its Subsidiaries to sign or file, under the Uniform Commercial
Code of any jurisdiction, a financing statement that names such Borrower or
any of its Subsidiaries as debtor, or sign, or permit any of its
Subsidiaries to sign, any security agreement authorizing any secured party
thereunder to file such financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to receive income,
excluding, however, from the operation of the foregoing restrictions the
following:
(i) Permitted Liens;
(ii) purchase money Liens upon or in one or more items of personal or
real property acquired or held by such Borrower or any of its Subsidiaries
in the ordinary course of business to secure the purchase price of such
property or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of any such property to be subject to such
Liens, or Liens existing on any such property at the time of acquisition,
or extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount; provided, however, that no such Lien shall extend
to or cover any
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property other than the property being acquired, and no such extension,
renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or replaced; and
provided further that any such Indebtedness shall not otherwise be
prohibited by the terms of the Loan Documents;
(iii) Liens arising under Capitalized Leases;
(iv) Liens on property of a Foreign Subsidiary, which Liens secure
Indebtedness permitted by Section 5.02(b)(iv)(A);
(v) Liens on the Borrowers' Franchisee Notes to secure Indebtedness
permitted by Section 5.02(b)(i)(C) or in connection with sales permitted
by Section 5.02(d)(iii); and
(vi) Liens securing Indebtedness permitted by Section 5.02(b)(vi).
(b) Indebtedness. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Indebtedness other than:
(i) in the case of the Borrowers,
(A) unsecured Indebtedness, if before and immediately after
giving effect to the creation, incurrence or assumption of such
Indebtedness:
(x) GNCI is in compliance, before and after giving effect
to the incurrence of such Indebtedness, on a pro forma basis,
with the Adjusted Maximum Leverage Ratio set forth in Section
5.04(b);
(y) the total amount of Indebtedness incurred pursuant to
this Section 5.02(b)(i)(A) and Section 5.02(b)(iv)(B) shall not
exceed an aggregate of $200,000,000 at any one time outstanding
(including, without limitation, the aggregate amount of all
outstanding and other undrawn commitments to provide
Indebtedness to GNI and its Subsidiaries pursuant to this
Section 5.02(b)(i)(A) and Section 5.02(b)(iv)(B)); and
(z) no Default shall have occurred and be continuing at the
time of such incurrence of Indebtedness;
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provided that prior to the creation, incurrence or assumption of any
such Indebtedness, the Administrative Agent shall have received a
certificate of the chief financial officer of GNCI showing, in
sufficient detail as to permit computation thereof, compliance with
the Adjusted Maximum Leverage Ratio set forth in Section 5.04(b) as
at the end of the immediately preceding Rolling Period and compliance
with the limitation on Indebtedness set forth in Section
5.02(b)(i)(A)(y); and provided further that any such Indebtedness
shall (1) contain covenants that are less restrictive in all material
respects and, in no case, more restrictive than those covenants set
forth in this Agreement and the other Loan Documents and (2) not have
any regularly scheduled amortization payments due on or before June
30, 2002;
(B) Indebtedness in respect of Hedge Agreements designed to
hedge against fluctuations in interest rates or foreign exchange
rates and not for speculative purposes;
(C) Indebtedness to effect a securitization of the Borrowers'
Franchisee Notes, provided that as at the time of the incurrence of
such Indebtedness, no Default shall have occurred or be continuing;
(D) Indebtedness in satisfaction or substitution for premiums on
insurance policies maintained by the Borrowers and their Subsidiaries
in the ordinary course of business of the Borrowers and their
Subsidiaries;
(ii) in the case of GNI,
(A) Indebtedness in respect of the PIK Preferred Stock; and
(B) Intercompany Subordinated Debt from time to time, and
(iii) in the case of any of its Subsidiaries referred to in Section
5.02(e)(i) or (ix) or any other Subsidiaries referred to in Sections
5.02(e)(iv) or (v) or any Affiliate referred to in Section 5.02(e)(vi), in
each case, to the extent permitted by those Sections, Indebtedness owed to
such Borrower or to a wholly-owned United States Subsidiary of such
Borrower;
(iv) in the case of Foreign Subsidiaries, any:
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(A) Indebtedness without recourse to GNCI, any Borrower, any
other Subsidiary of any Borrower or any Affiliate thereof;
(B) any other unsecured Indebtedness if before and immediately
after giving effect to the creation, incurrence or assumption
thereof:
(x) GNCI is in compliance, before and after giving effect
to the incurrence of such Indebtedness, on a pro forma basis,
with the Adjusted Maximum Leverage Ratio set forth in Section
5.04(b);
(y) the total amount of Indebtedness incurred pursuant to
Section 5.02(b)(i)(A) and this Section 5.02(b)(iv) (B) shall not
exceed an aggregate of $200,000,000 (or other equivalent thereof
in any Foreign Currency, determined as of the date of the
incurrence of such Indebtedness) at any one time outstanding
(including, without limitation, the aggregate amount of all
outstanding and other undrawn commitments to provide
Indebtedness to GNI and its Subsidiaries pursuant to Section
5.02(b)(i)(A) and this Section 5.02(b)(iv)(B));
(z) no Default shall have occurred and be continuing at the
time of such incurrence of Indebtedness;
provided that prior to the creation, incurrence or assumption of any
such Indebtedness, the Administrative Agent shall have received a
certificate of the chief financial officer of GNCI showing, in
sufficient detail as to permit computation thereof, compliance with
the Adjusted Maximum Leverage Ratio set forth in Section 5.04(b) as
at the end of the immediately preceding Rolling Period and compliance
with the limitation on Indebtedness set forth in Section
5.02(b)(iv)(B)(y);
(v) in the case of the Borrowers and any of their Subsidiaries,
(A) unsecured Indebtedness incurred in the ordinary course of
business for the deferred purchase price of property or services,
maturing within one year from the date created;
(B) Indebtedness secured by Liens permitted by Section
5.02(a)(ii) and 5.02(a)(iii) not to exceed in the aggregate
$50,000,000 at any time outstanding; and
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(C) Indebtedness under the Loan Documents;
(vi) in the case of the Borrowers, any wholly-owned United States
Subsidiary of the Borrowers or Gustine, in each case, to purchase and
renovate the building located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx, Indebtedness in a principal amount, together with any
Investments permitted under Section 5.02(e)(x), not to exceed in the
aggregate $30,000,000 at any one time outstanding; and
(vii) indorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business.
(c) Mergers, Etc. Merge with or into or consolidate with or into any
Person or permit any Person to merge with or into it, or transfer or
dispose of all or substantially all of its property and assets, or permit
any of its Subsidiaries to do any of the foregoing, except that (i) any
wholly-owned United States Subsidiary of such Borrower may merge with or
into or consolidate with or into, or transfer all or substantially all of
its property and assets to, any other wholly-owned United States
Subsidiary of such Borrower or such Borrower, (ii) GNI may merge with or
into or consolidate with or into, or transfer all or substantially all of
its property and assets to GNCI and (iii) any Loan Party may merge with or
into a wholly-owned United States Subsidiary of such Loan Party that (A)
is incorporated under the laws of the State of Delaware and (B) has no
material assets or liabilities, for the sole purpose of changing the state
of incorporation of such Loan Party if the surviving corporation shall
expressly assume the liabilities of such Loan Party under the Loan
Documents; provided, however, that, in each case, immediately after giving
effect thereto, no event shall occur and be continuing that constitutes a
Default.
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, except:
(i) sales of inventory and equipment by the Borrowers and their
Subsidiaries in the ordinary course of its business;
(ii) dispositions of property and assets by wholly-owned United
States Subsidiaries in a transaction permitted by Section 5.02(c);
(iii) sales of Franchisee Notes;
(iv) other dispositions of property and assets by the Borrowers
and their Subsidiaries for cash and fair value that do not exceed an
aggregate
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amount of $20,000,000 in any single transaction or series of related
transactions or $75,000,000 in the aggregate;
(v) Permitted Franchise Asset Sales;
(vi) transfers of property and assets by the Borrowers and their
Subsidiaries to any other United States Loan Party (other than GNCI);
provided that as at the time of such transfers, no Default shall have
occurred or be continuing;
(vii) transfers of property and assets by any Subsidiary of the
Borrowers that is organized, and with substantially all of its assets
located, outside of the United States to any Foreign Subsidiary;
(viii) the sale or lease of the Borrowers' headquarters building
located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx.
(e) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments by the Borrowers and their wholly-owned United
States Subsidiaries in their wholly-owned United States Subsidiaries,
so long as such Investments are made in the Health Care Business and
in incidental businesses acquired in connection therewith;
(ii) Investments by the Borrowers and their Subsidiaries in (A)
Cash Equivalents and (B) Hedge Agreements;
(iii) Investments by the Borrowers and their Subsidiaries in
Franchisee Notes;
(iv) Investments by the Borrowers and their wholly-owned United
States Subsidiaries in Foreign Subsidiaries in an aggregate amount
not to exceed $300,000,000 (or the equivalent thereof in any Foreign
Currency, determined as of the date such Investment is made)
outstanding at any one time (including the aggregate amount of all
outstanding and other undrawn commitments of Indebtedness of such
Foreign Subsidiaries permitted by Sections 5.02(b)(iii) and
5.02(b)(iv)(B)), so long as such Investments are made in the Health
Care Business and in incidental businesses acquired in connection
therewith;
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(v) Investments by the Borrowers in non-wholly-owned
Subsidiaries in an aggregate amount not to exceed $100,000,000 (or
the equivalent thereof in any Foreign Currency, determined as of the
date such Investment is made) outstanding at any one time (including
the aggregate amount of all outstanding Indebtedness of such
non-wholly-owned Subsidiary permitted by Section 5.02(b)(iii)), so
long as such Investments are made in the Health Care Business and in
incidental businesses acquired in connection therewith;
(vi) Investments by the Borrowers in Affiliates in an aggregate
amount not to exceed $50,000,000 (or the equivalent thereof in any
Foreign Currency, determined as of the date such Investment is made)
outstanding at any one time (including the aggregate amount of all
outstanding Indebtedness of such Affiliate permitted by Section
5.02(b)(iii)), so long as such Investments are made in the Health
Care Business and in incidental businesses acquired in connection
therewith; provided, that if, at any time, the Borrowers make a
single or a series of related Investments in any Affiliate in an
aggregate amount equal to or greater than $30,000,000 (or the
equivalent thereof in any Foreign Currency, determined as of the date
such Investment is made), such Investment shall be for the
acquisition of at least 20% of the Voting Stock of such Affiliate;
(vii) other Investments in an aggregate amount invested and at
any time outstanding not to exceed $5,000,000 (or the equivalent
thereof in any Foreign Currency, determined as of the date such
Investment is made), so long as such Investments are made in the
Health Care Business and in incidental businesses acquired in
connection therewith;
(viii) Investments as of the Fourth Restatement Date in Gymee's,
Inc., Nutri-Science, Inc. and WLC Acquisition Corp.;
(ix) Investments by the Borrowers in any Person that becomes a
non-wholly-owned United States Subsidiary in connection with a tender
offer involving a back-end merger pursuant to a signed merger
agreement, provided that (A) pursuant to such tender offer, the
Borrowers shall have purchased at least 90% of such Person's Voting
Stock, (B) such merger shall have been approved by such Person's
board of directors and (C) such Person shall become a wholly-owned
United States Subsidiary within six months following the initial
Investment; and
(x) Investments by the Borrowers (A) as a limited partner in
Gustine Sixth Avenue Associates Ltd. ("Gustine") and (B) in loans to
such partnership in an aggregate principal amount of such Investments
described in
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clauses (A) and (B) above not in excess of $30,000,000 in each case
to purchase and renovate the building located at 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx; provided that, in each case, before and
immediately after giving effect to any Investment otherwise permitted
by Sections 5.02(e)(i), (iv), (v), (vi), (vii), (ix) and (x), no
Default shall have occurred and be continuing; and
(xi) Investments by the Borrowers and their Subsidiaries in
loans or advances to employees in the ordinary course of business of
the Borrowers and their Subsidiaries in an aggregate amount not to
exceed $5,000,000 (or the equivalent thereof in any Foreign Currency,
determined as of the date such Investment is made) at any time
outstanding;
provided, however, that in each case no Investment made in a single
transaction or series of related transactions shall exceed $100,000,000
(or the equivalent thereof in any Foreign Currency, determined as of the
date such Investment is made).
(f) Dividends, Etc. Declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its capital stock or
any warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such,
make any distribution of assets, capital stock, warrants, rights, options,
obligations or securities to its stockholders as such, or issue or sell
any capital stock or any warrants, rights or options to acquire such
capital stock, or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any capital stock of such
Borrower or any warrants, rights or options to acquire such capital stock
or to issue or sell any capital stock or certificates of beneficial
ownership, as applicable, or any warrants, rights or options to acquire
such capital stock, except the Borrowers and their wholly-owned
Subsidiaries may:
(i) in the case of GNI, declare and pay dividends in cash to
GNCI to (1) discharge the obligations of GNI and its Subsidiaries
under the Tax Sharing Agreement, (2) pay administrative costs in the
ordinary course of business of GNCI, (3) provide GNCI with funds to
repurchase its outstanding capital stock or pay dividends to its
shareholders in an aggregate amount not to exceed $150,000,000,
provided, that following March 31, 1999, an additional amount of up
to $50,000,000 shall be permitted if, as at the end of the two
consecutive Rolling Periods ending immediately prior to the date of
such additional repurchases or dividend payments, the Maximum
Leverage Ratio shall be less than 2.00 : 1.00.
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(ii) purchase, redeem or defease the PIK Preferred Stock;
(iii) in the case of GNI, issue or sell any capital stock to
GNCI; and
(iv) in the case of any Subsidiary, declare and pay cash
dividends to the Borrowers or to a wholly-owned United States
Subsidiary of GNI.
provided that in each case, immediately before and immediately after
giving effect thereto, no Default shall have occurred and be continuing.
(g) Change in Nature of Business. Engage, or permit any of its
Subsidiaries to engage, in a business other than the Health Care Business,
except such business as may be acquired by the Loan Parties in connection
with an Investment permitted by Section 5.02(e)(i), (iv), (v), (vi), (vii)
or (ix) as shall be incidental to any such Investment.
(h) Charter Amendments. Amend, or permit any of its Subsidiaries to
amend (i) its certificate of incorporation or instrument organizing
business trust, as applicable, or (ii) its bylaws if such amendment could
reasonably be expected to adversely affect the interest or rights of the
Administrative Agent or the Lenders in any manner.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices (including, without limitation, any change in its
Fiscal Year), except as required or permitted by generally accepted
accounting principles, securities laws or the rules of any stock exchange
upon which GNCI's capital stock may be listed; provided that, if GNCI or
any of its Subsidiaries makes any such change in accounting policies or
reporting requirements, the Borrowers shall provide reconciliation reports
to the Administrative Agent, in form and substance satisfactory to the
Administrative Agent and if such change would impact the calculation of
the financial covenants contained in Section 5.04, the Borrowers shall
provide to the Lenders a revised calculation of each of the financial
covenants impacted by such change for each Fiscal Quarter from the date of
such change.
(j) Prepayments, Etc. of Indebtedness. (i) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Indebtedness, other than (1) the prepayment of the Advances in
accordance with the terms of this Agreement, (2) the prepayment of any
Indebtedness payable to any Borrower or to a wholly-owned United States
Subsidiary of such Borrower, (3) the prepayment of any Indebtedness
permitted by Section 5.02(b)(iv)(A), or 5.02(b)(v)(B), (ii) amend,
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modify or change in any manner any term or condition of any PIK Preferred
Stock or any Indebtedness permitted by Section 5.02(b)(i)(A), or permit
any of its Subsidiaries to do any of the foregoing, in each case in any
manner materially adverse to the Administrative Agent or the Lenders;
provided that if the Maximum Leverage Ratio as at the end of the
immediately preceding Rolling Period is less than 1.00 : 1.00, the
Borrowers and their Subsidiaries shall be permitted to prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof any other Indebtedness permitted by Section 5.02(b) in an amount
not to exceed $25,000,000.
(k) Amendment, Etc. of Related Documents. Cancel or terminate any
Related Document or consent to or accept any cancellation or termination
thereof, amend, modify or change in any material respect any term or
condition of any Related Document or give any consent, waiver or approval
thereunder (it being acknowledged by such Borrower that the financial and
payment terms of any such Related Document are material terms and
conditions thereof), waive any default under or any breach of any term or
condition of any Related Document, agree in any manner to any other
amendment, modification or change of any term or condition of any Related
Document or take any other action in connection with any Related Document,
in each case that could reasonably be expected to impair the value of the
interest or rights of such Borrower thereunder or that could reasonably be
expected to impair the interest or rights of the Agents or the Lenders in
any manner, or permit any of its Subsidiaries to do any of the foregoing;
provided that the Tax Sharing Agreement may be amended to add as parties
thereto any wholly-owned Subsidiaries of the Borrowers on terms that are
substantially identical to the terms applicable to the Borrowers.
(l) Amendment, Etc. of Material Contracts. Cancel or terminate any
Material Contract or consent to or accept any cancellation or termination
thereof, amend, modify or otherwise change in any material respect any
term or condition of any Material Contract or give any consent, waiver or
approval thereunder, waive any default under or any breach of any term or
condition of any Material Contract, agree in any manner to any other
amendment, modification or change of any term or condition of any Material
Contract or take any other action in connection with any Material
Contract, in each case that could reasonably be expected to materially
impair the value of the interest or rights of such Borrower thereunder or
that could reasonably be expected to have a Material Adverse Effect, or
permit any of its Subsidiaries to do any of the foregoing.
(m) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets other than in favor of the Administrative
Agent and the Lenders or in connection with Indebtedness
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permitted by Section 5.02(b)(iv)(A) to the extent such Lien extends solely
to the property or assets of the Foreign Subsidiary incurring such
Indebtedness.
(n) Partnerships. Become a general partner in any general or limited
partnership, or permit any of its Subsidiaries to do so.
(o) Release of Subsidiary Guarantors. Release any Subsidiary
Guarantor from any of its Obligations, except in connection with a sale of
the assets or capital stock of such Subsidiary Guarantor in a transaction
permitted under Section 5.02(d).
SECTION 5.03. Reporting Requirements to Lenders. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
shall have any Commitment hereunder, GNCI (except as noted below) will furnish
to the Lenders:
(a) Default Notice. As soon as possible and in any event within two
Business Days after any Loan Party has knowledge of the occurrence of a
Default continuing on the date of such statement, a statement of the chief
financial officer of GNI setting forth the nature of such Default and the
action that the Borrowers have taken and proposes to take with respect
thereto.
(b) Quarterly Financials. As soon as available and in any event within 45
days after the end of each of the first three Fiscal Quarters of each Fiscal
Year of GNCI, Consolidated balance sheets of GNCI and its Subsidiaries as of
the end of such Fiscal Quarter and Consolidated statements of income, cash
flow of, and changes in stockholders' equity of GNCI and its Subsidiaries
for the period commencing at the end of the previous Fiscal Quarter and
ending with the end of such Fiscal Quarter, setting forth in each case in
comparative form the year to date figures for such Fiscal Quarter, the
corresponding Fiscal Quarter in the preceding Fiscal Year and the year to
date figures for the corresponding Fiscal Quarter in the preceding Fiscal
Year, all in reasonable detail and duly certified (subject to year-end audit
adjustments and to the absence of footnote disclosure) by the chief
financial officer of GNCI as having been prepared in accordance with GAAP,
together with (i) a certificate of the chief financial officer of GNI
stating that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and the
action that GNI has taken and proposes to take with respect thereto, (ii) a
schedule in form satisfactory to the Administrative Agent of the
computations used by GNCI in determining compliance as of the end of such
Fiscal Quarter with the covenants contained in Sections 5.02 and 5.04 (other
than 5.04(b)) and (iii) a management and financial report, including a
schedule of Funded Indebtedness, a report of same store sales for such
Fiscal Quarter, and a management discussion of results from operations for
such Fiscal Quarter.
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(c) Annual Financials. As soon as available and in any event within 90
days after the end of each Fiscal Year of GNCI, a copy of the annual audit
report for such Fiscal Year of GNCI and its Subsidiaries, including therein
Consolidated balance sheets of GNCI and its Subsidiaries as of the end of
such Fiscal Year and Consolidated statements of income, cash flow, and
changes in stockholders' equity of GNCI and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion reasonably acceptable to the
Required Lenders of Deloitte & Touche or other independent public
accountants of recognized standing reasonably acceptable to the Required
Lenders, together with (i) a certificate of the chief financial officer of
GNI stating that no Default has occurred and is continuing or, if a Default
has occurred and is continuing, a statement as to the nature thereof and the
action that GNI has taken and proposes to take with respect thereto, (ii) a
schedule in form and substance satisfactory to the Administrative Agent of
the computations used by GNCI in determining, as of the end of such Fiscal
Year, compliance with the covenants contained in Sections 5.02 and 5.04
(other than 5.04(b)) and (iii) a management and financial report, including
a schedule of Funded Indebtedness, a report of same store sales for such
Fiscal Year, and a management discussion of results from operations for such
Fiscal Year.
(d) Accountants' Reports. Promptly upon receipt thereof, copies of all
reports submitted to GNCI or any of its Subsidiaries by Deloitte & Touche or
any other independent public accountants of GNCI or any such Subsidiary in
connection with each annual, interim or special audit of its financial
statement made by such accountants, including the comment letter submitted
by such accountants to management of GNCI or any such Subsidiary in
connection with their annual audit.
(e) ERISA Events. Promptly and in any event within ten days after any Loan
Party or any of its ERISA Affiliates knows or has reason to know that any
ERISA Event with respect to any Loan Party or any of its ERISA Affiliates
has occurred, a statement of the chief financial officer of GNCI describing
such ERISA Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and proposes to take with respect thereto.
(f) Plan Annual Reports. Promptly and in any event within 30 days after
the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (form 5500 Series)
with respect to each Plan of each Loan Party or any of its ERISA Affiliates.
(g) Multiemployer Plan Notices. Promptly and in any event within 10 days
after receipt thereof by any Loan Party or any of its ERISA Affiliates from
the sponsor of a Multiemployer Plan of any Loan Party or any of its ERISA
Affiliates, copies of each notice concerning (i) the imposition of
Withdrawal Liability by any
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such Multiemployer Plan, (ii) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (iii) the
amount of liability incurred, or that may be incurred, by such Loan Party or
any of its ERISA Affiliates in connection with any event described in clause
(i) or (ii) above.
(h) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations (including, without limitation, any
investigation from any regulatory agency and any reports resulting from such
investigation), litigation and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, affecting any Loan Party or any of its Subsidiaries of the type
described in Section 4.01(i).
(i) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any
Loan Party or any of its Subsidiaries sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration
statements, that any Loan Party or any of its Subsidiaries files with the
SEC or any governmental authority that may be substituted therefor, or with
any national securities exchange.
(j) Revenue Agent Reports. Within 30 days after receipt, copies or
summaries of all Revenue Agent Reports (Internal Revenue Service form 886),
or other written proposals of the Internal Revenue Service, that propose,
determine or otherwise set forth increases to the federal income tax
liability of the affiliated group (within the meaning of Section 1504(a)(1)
of the Internal Revenue Code) of which such Borrower is a member aggregating
$3,000,000 or more.
(k) Agreement Notices. Upon request by the Administrative Agent, such
other information and reports regarding the Related Documents and the
Material Contracts as the Administrative Agent may reasonably request.
(l) Environmental Conditions. Promptly after the occurrence thereof,
notice of any condition or occurrence on any property of any Loan Party or
any of its Subsidiaries that results in a material noncompliance by any Loan
Party or any of its Subsidiaries with any Environmental Law or Environmental
Permit or could (i) form the basis of an Environmental Action against any
Loan Party or any of its Subsidiaries or such property that could reasonably
be expected to have a Material Adverse Effect or (ii) cause any such
property to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
(m) Plan Terminations. Promptly and in any event within two Business Days
after receipt thereof by any Loan Party or any of its ERISA Affiliates,
copies of each notice from the PBGC stating its intention to terminate any
Plan of any Loan
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Party or any of its ERISA Affiliates or to have a trustee appointed to
administer any such Plan.
(n) Environmental Reports. Promptly after the receipt thereof, copies of
all reports furnished to GNCI or any of its Subsidiaries (including, without
limitation, environmental site assessment reports) prepared by environmental
consulting firms in respect of any properties owned or leased by GNCI or any
of its Subsidiaries.
(o) Other Information. Such other information with respect to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
SECTION 5.04. Financial Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit is outstanding or any Lender shall have any
Commitment hereunder, GNCI will:
(a) Maximum Leverage Ratio. Maintain on a Consolidated basis for itself
and its Subsidiaries a Maximum Leverage Ratio for each Rolling Period of not
more than the amount set forth below for each Fiscal Year set forth below:
Maximum
Fiscal Year Leverage Ratio
----------- --------------
Fiscal Year 1997 3.50 : 1.00
Fiscal Year 1998 3.50 : 1.00
Fiscal Year 1999 3.25 : 1.00
Fiscal Year 2000 2.75 : 1.00
Fiscal Year 2001 2.25 : 1.00
(b) Adjusted Maximum Leverage Ratio. Maintain on a Consolidated basis for
itself and its Subsidiaries an Adjusted Maximum Leverage Ratio for each
Rolling Period of not more than the amount set forth below for each Fiscal
Year set forth below:
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Adjusted Maximum
Fiscal Year Leverage Ratio
----------- ----------------
Fiscal Year 1997 3.50 : 1.00
Fiscal Year 1998 3.50 : 1.00
Fiscal Year 1999 3.25 : 1.00
Fiscal Year 2000 2.75 : 1.00
Fiscal Year 2001 2.25 : 1.00
(c) Fixed Charge Coverage Ratio. Maintain on a Consolidated basis for
itself and its Subsidiaries a Fixed Charge Coverage Ratio for each Rolling
Period of not less than the amount set forth below for each Fiscal Year set
forth below:
Fixed Charge
Fiscal Year Coverage Ratio
----------- --------------
Fiscal Year 1997 1.30 : 1.00
Fiscal Year 1998 1.40 : 1.00
Fiscal Year 1999 1.40 : 1.00
Fiscal Year 2000 1.50 : 1.00
Fiscal Year 2001 1.50 : 1.00
(d) Minimum Net Worth. Maintain at all times on a Consolidated basis for
itself and its Subsidiaries an excess of total assets less total liabilities
less (w) 25% of the total amount of Net Cash Proceeds received by GNCI from
any sale or issuance of any capital stock or any warrants, rights or options
to acquire capital stock plus (x) the total amount, if any, of funds used in
accordance with the provisions of Section 5.02(f)(i)(3) plus (y) the total
amount of non-cash charges relating to (i) pensions, (ii) stock options,
(iii) stock appreciation rights, and (iv) other equity-based incentive
plans, plus or minus (z) foreign currency translations, of not less than the
amount set forth below for each Fiscal Year set forth below:
Minimum
Fiscal Year Net Worth
----------- ---------
Fiscal Year 1997 $240,000,000
Fiscal Year 1998 $300,000,000
Fiscal Year 1999 $370,000,000
Fiscal Year 2000 $450,000,000
Fiscal Year 2001 $530,000,000
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) (i) any Borrower shall fail to pay any principal of any Advance, when
the same becomes due and payable or (ii) any Loan Party shall fail to make
interest or any other payment under any Loan Document within five Business
Days after the same becomes due and payable; or
(b) any representation or warranty made, or deemed to be made, by any Loan
Party or any of its officers under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made (or
deemed made); or
(c) (i) any of GNC, GNI or GNCI shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(b), 5.01(e), 5.01(i) (to the
extent that such covenant relates to the chief executive office or chief
place of business of such Borrower), 5.01(j), 5.02, 5.03 (except with
respect to 5.03(b) and (c)) or 5.04, (ii) either GNC, GNI or GNCI shall fail
to perform or observe any term, covenant or agreement contained in 5.03(b)
and (c) and such failure shall continue for 10 days, (iii) GNCI shall fail
to perform or observe any term, covenant or agreement contained in Section
7(a) of the Fourth Amended and Restated Parent Guaranty, or (iv) any Loan
Party shall fail to perform any other term, covenant or agreement contained
in any Loan Document on its part to be performed or observed and such
failure shall remain unremedied for 20 days after written notice thereof
shall have been given to the Borrowers by the Administrative Agent or any
Lender; or
(d) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Indebtedness that is outstanding in a principal amount of at least
$5,000,000 in the aggregate (but excluding Indebtedness outstanding
hereunder) of such Loan Party or such Subsidiary, as the case may be, when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise); or any other event shall
occur or condition shall exist under any agreement or instrument relating to
any such Indebtedness, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Indebtedness or otherwise to cause, or to permit the holder thereof to
cause, such Indebtedness to mature; or any such Indebtedness shall be
declared to be due and payable or required to be prepaid or redeemed (other
than by a regularly scheduled
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required prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Indebtedness shall be required to
be made, in each case prior to the stated maturity thereof; or
(e) any Loan Party or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against any Loan
Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial
part of its property and, in the case of any such proceeding instituted
against it (but not instituted by it) that is being diligently contested by
it in good faith, either such proceeding shall remain undismissed or
unstayed for a period of 30 days or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall
occur; or any Loan Party or any of its Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this Section
6.01(e); or
(f) any judgment or order for the payment of money in excess of $5,000,000
shall be rendered against any Loan Party or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(g) any nonmonetary judgment or order shall be rendered against any Loan
Party or any of its Subsidiaries that is reasonably likely to have a
Material Adverse Effect, and there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect; or
(h) any provision of any Loan Document after delivery thereof pursuant to
Section 3.01 shall for any reason cease to be valid and binding on or
enforceable against any Loan Party party to it that results in a materially
adverse effect on the rights and remedies of the Agents or any Lender, or
any such Loan Party shall so state in writing; or
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(i) (i) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of GNCI (or other securities
convertible into such Voting Stock) representing 20% or more of the combined
voting power of all Voting Stock of GNCI; or (ii) during any period of up to
24 consecutive months, commencing before or after the Fourth Restatement
Date, individuals who at the beginning of such 24-month period were
directors of GNCI (together with any new directors whose election or
appointment by the board of directors of GNCI or whose nomination for
election by the shareholders of GNCI was approved by a vote of 66-2/3% of the
directors of GNCI then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) shall cease for any reason to constitute a majority
of the board of directors of GNCI then in office; or
(j) any ERISA Event shall have occurred with respect to a Plan of any Loan
Party or any of its ERISA Affiliates and the sum (determined as of the date
of occurrence of such ERISA Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans of the Loan Parties and their ERISA
Affiliates with respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Loan Parties and their ERISA Affiliates
related to such ERISA Event) exceeds $1,000,000; or
(k) any Loan Party or any of its ERISA Affiliates shall have been notified
by the sponsor of a Multiemployer Plan of any Loan Party or any of its ERISA
Affiliates that it has incurred Withdrawal Liability to such Multiemployer
Plan in an amount that, when aggregated with all other amounts required to
be paid to Multiemployer Plans by the Loan Parties and their ERISA
Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $1,000,000 or requires payments exceeding $500,000
per annum; or
(l) any Loan Party or any of its ERISA Affiliates shall have been notified
by the sponsor of a Multiemployer Plan of any Loan Party or any of its ERISA
Affiliates that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and as a result of such
reorganization or termination the aggregate annual contributions of the Loan
Parties and their ERISA Affiliates to all Multiemployer Plans that are then
in reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years of
such Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding $1,000,000;
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then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the obligation of each Appropriate Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrowers, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by each
Borrower; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to any Loan Party under the Federal Bankruptcy
Code, (x) the obligation of each Lender to make Advances shall automatically be
terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
each Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If
any Event of Default shall have occurred and be continuing, the Administrative
Agent may, irrespective of whether it is taking any of the actions described in
Section 6.01 or otherwise, make demand upon the Borrowers to, and forthwith
upon such demand the Borrowers will, pay to the Administrative Agent on behalf
of the Lenders in same day funds at the Administrative Agent's office
designated in such demand, for deposit in the L/C Cash Collateral Account, an
amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding. If at any time the Administrative Agent determines that any funds
held in the L/C Cash Collateral Account are subject to any right or claim of
any Person other than the Administrative Agent and the Lenders or that the
total amount of such funds is less than the aggregate Available Amount of all
Letters of Credit, the Borrowers will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to
be deposited and held in the L/C Cash Collateral Account, an amount equal to
the excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent determines to be free and clear of any such right and
claim.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof
and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly
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provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Notes), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement or applicable law. The Administrative Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrowers pursuant to the terms of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. Neither any of the Agents nor any of
their directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limiting the generality of the foregoing, the Administrative Agent: (a)
may treat the payee of any Note as the holder thereof until the Administrative
Agent receives and accepts an Assignment and Acceptance entered into by the
Lender that is the payee of such Note, as assignor, and an Eligible Assignee,
as assignee, as provided in Section 8.07; (b) may consult with legal counsel
(including counsel for any Loan Party), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements,
warranties or representations made in or in connection with the Loan Documents;
(d) shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of any Loan Document on
the part of any Loan Party or to inspect the property (including the books and
records) of any Loan Party; (e) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant hereto; (f) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, telecopy, cable or telex) believed by it to
be genuine and signed or sent by the proper party or parties; and (g) shall
incur no liability as a result of any determination whether the transactions
contemplated by the Loan Documents constitute a "highly leveraged transaction"
within the meaning of the interpretations issued by the Comptroller of the
Currency, the Federal Deposit Insurance Corporation and the Board of Governors
of the Federal Reserve System.
SECTION 7.03. Agents, Issuing Bank, Swing Line Bank and Affiliates. With
respect to its Commitments, the Advances made by it and the Note or Notes
issued to it, each Agent, the Issuing Bank and the Swing Line Bank shall have
the same rights and powers under the Loan Documents as any other Lender and may
exercise the same as though
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it were not an Agent, the Issuing Bank or the Swing Line Bank, and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include each
Agent, the Issuing Bank and the Swing Line Bank, as the case may be, in its
individual capacity. Each Agent, the Issuing Bank and the Swing Line Bank and
their respective affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, any Loan Party, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if it were not an Agent, the Issuing
Bank or the Swing Line Bank, and without any duty to account therefor to the
Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon any Agent, the Issuing Bank or the
Swing Line Bank or any other Lender and based on the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon any Agent, the Issuing Bank or the Swing Line Bank 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 decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. Each Lender severally agrees to indemnify
the Agents, the Issuing Bank and the Swing Line Bank (to the extent not
promptly reimbursed by the Borrowers) from and against such Lender's ratable
share of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Agents, the Issuing Bank or the Swing Line Bank, as the case may be, in any way
relating to or arising out of the Loan Documents or any action taken or omitted
to be taken by the Administrative Agent, the Issuing Bank and the Swing Line
Bank, as the case may be, under the Loan Documents; provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agents', the Issuing Bank's or the Swing Line
Bank's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Administrative Agent, the
Issuing Bank and the Swing Line Bank promptly upon demand for its ratable share
of any costs and expenses payable by the Borrowers under Section 8.04, to the
extent that the Administrative Agent, the Issuing Bank and the Swing Line Bank,
as the case may be, is not promptly reimbursed for such costs and expenses by
the Borrowers. For purposes of this Section 7.05, the Lenders' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lenders plus (ii) their respective Unused
Revolving Credit Commitments at such time plus (iii) their respective Pro Rata
Shares of the aggregate outstanding Swing Line Advances, other than any Swing
Line Advance that, at or prior to
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such time, has been assigned in part to, and made by, a Lender pursuant to
Section 2.02(b) plus (iv) their respective Pro Rata Shares of the aggregate
outstanding Letter of Credit Advances, other than any Letter of Credit Advance
that, at or prior to such time, has been assigned in part to, and made by, a
Lender pursuant to Section 2.13(c) plus (v) their respective Pro Rata Shares of
the aggregate Available Amount of Letters of Credit then outstanding. The
failure of any Lender to reimburse the Administrative Agent promptly upon
demand for its ratable share of any amount required to be paid by the Lenders
to the Administrative Agent as provided herein shall not relieve any other
Lender of its obligation hereunder to reimburse the Administrative Agent for
its ratable share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse the Administrative Agent for such
other Lender's ratable share of such amount.
SECTION 7.06. Successor Administrative Agents. The Administrative Agent
may resign from any or all of the Facilities at any time by giving written
notice thereof to the Lenders and the Borrowers. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent as to such of the Facilities as to which the Administrative Agent has
resigned; provided that such appointed successor Administrative Agent is a
Lender. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be (i) a commercial bank or (ii) a
finance company, insurance company or other financial institution that is
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and is capable of performing the duties of the
Administrative Agent hereunder. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent as to all of the Facilities, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent as to any
Facilities under this Agreement. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to all of
the Facilities, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to any of the Facilities, such successor Administrative
Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative Agent as to
such Facility or Facilities, other than with respect to funds transfers and
other similar aspects of the administration of Borrowings under such Facility
or Facilities and payments by the Borrowers in respect of such Facility or
Facilities, and the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement as to such Facility or Facilities,
other than as aforesaid.
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SECTION 7.07. The Agents. Neither the Documentation Agent, nor either
Syndication Agent, nor any Co-Agent, in its capacity as such Agent, assumes any
responsibility or obligation hereunder for servicing, syndication, enforcement
or collection of the Indebtedness resulting from the Advances, nor any duties
as agent hereunder for the Lenders.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by the Borrowers
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that (a) no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following at any
time: (i) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Lenders that shall be required
for the Lenders or any of them to take any action hereunder or change the
percentage contained in the definition of Required Lenders or (ii) amend this
Section 8.01 or Section 5.02(m), or release any guaranty of GNCI, GNI or GNC,
and (b) no amendment, waiver or consent shall, unless in writing and signed by
the Required Lenders and each Appropriate Lender that is affected thereby, do
any of the following: (i) increase the Commitments of such Lender or subject
such Lender to any additional obligations, (ii) reduce the principal of, or
interest on, the Note or Notes held by such Lender or any fees or other amounts
payable hereunder to such Lender, or (iii) postpone any date fixed for any
commitment reduction or any payment of principal of, or interest on, the Note
or Notes held by such Lender or any fees or other amounts payable hereunder to
such Lender; provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Bank or the Issuing Bank, as the
case may be, in addition to the Lenders required above to take such action,
affect the rights or obligations of the Swing Line Bank or of the Issuing Bank,
as the case may be, under this Agreement; and provided further that, in any
case, no amendment, waiver or consent shall, unless in writing and signed by
the Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telegraphic, telecopy, telex or
cable communication) and mailed, telegraphed, telecopied, telexed, cabled or
delivered, if to GNI, at its address at 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000,
Attention: Chief Financial Officer, if to GNC, at its address at 000 Xxxx
Xxxxxx, Xxxxxxxxxx, XX 00000, Attention:
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Chief Financial Officer, with a copy to Xxxxxxxx, Xxxxxxx & Xxxxxxx, A
Professional Corporation, at its address at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX
00000, Attention: Xxxxxxx X. Xxxxxx; if to any Restatement Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender, at its Domestic Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender; and if to the
Administrative Agent, at its address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx Xxxxxxxxx; or, as to each party, at such other
address as shall be designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed, telegraphed,
telecopied, telexed or cabled, be effective when deposited in the mails,
delivered to the telegraph company, transmitted by telecopier, confirmed by
telex answerback or delivered to the cable company, respectively, except that
notices and communications to the Administrative Agent pursuant to Article II,
III or VII shall not be effective until received by the Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or
any Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) GNC and GNI jointly and severally
hereby agree to pay on demand (i) all reasonable out-of-pocket costs and
expenses of the Administrative Agent, the Issuing Bank and the Swing Line Bank
in connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents (including, without
limitation, (A) all due diligence, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of counsel
for the Administrative Agent with respect thereto, with respect to advising the
Administrative Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors' rights generally
and any proceeding ancillary thereto), (ii) all reasonable costs and expenses
of the Agents and the Lenders in connection with the enforcement of the Loan
Documents, whether in any action, suit or litigation, any bankruptcy,
insolvency or other similar proceeding affecting creditors' rights generally or
otherwise (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent and each Lender with respect thereto) and
(iii) all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of the Loan Documents.
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(b) The Borrowers jointly and severally hereby agree to indemnify and hold
harmless the Agents and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims that may be asserted against, and
any and all damages, losses, liabilities and reasonable expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or awarded against, any Indemnified Party, in each case arising out
of or in connection with or by reason of, or in connection with the preparation
for a defense of, any investigation, litigation or proceeding arising out of,
related to or in connection with (i) the transactions contemplated hereby or
(ii) the actual or alleged presence of Hazardous Materials on any property of
any Loan Party or any of its Subsidiaries or any Environmental Action relating
in any way to any Loan Party or any of its Subsidiaries, in each case whether
or not such investigation, litigation or proceeding is brought by any Loan
Party, its directors, shareholders or creditors or an Indemnified Party or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. No termination of
this Agreement shall affect the obligations of the Borrowers to indemnify each
Indemnified Party under the conditions and to the extent set forth in this
Section 8.04(b).
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance is made by any of the Borrowers to or for the account of a Lender other
than on the last day of the Interest Period for such Advance, as a result of a
payment or conversion pursuant to Section 2.08(b)(i), 2.09(d) or 2.09(e),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrowers jointly and severally hereby agree to, upon demand
by such Lender (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by any Lender to fund or maintain such Advance. A certificate as to the amount
of such required compensation, submitted to the Borrowers by such Lender, shall
be conclusive and binding for all purposes, absent manifest error.
(d) If any Loan Party fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
fees and expenses of counsel and indemnities, such amount may be paid on behalf
of such Loan Party by the Administrative Agent or any Lender, in its sole
discretion.
SECTION 8.05. Right of Setoff. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the
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consent specified by Section 6.01 to authorize the Administrative Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and
otherwise apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender or such Affiliate to or for the credit or the account of the
Borrowers against any and all of the Obligations of the Borrowers now or
hereafter existing under this Agreement and the Note or Notes held by such
Lender, and irrespective of whether such Lender shall have made any demand
under this Agreement or such Note or Notes and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrowers after any such
setoff and application; provided, however, that the failure to give such notice
shall not affect the validity of such setoff and application. The rights of
each Lender and its Affiliates under this Section 8.05 are in addition to other
rights and remedies (including, without limitation, other rights of setoff)
that such Lender and its Affiliates may have. Each such setoff shall be subject
to Section 2.12.
SECTION 8.06. Binding Effect. This Agreement shall become effective when
it shall have been executed by each GNC and GNI, the Agents, the Issuing Bank
and the Swing Line Bank and when the Administrative Agent shall have been
notified by each Restatement Lender that such Restatement Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrowers, the Agents, the Issuing Bank, the Swing Line Bank, and each Lender
and their respective successors and assigns, except that no Borrower shall have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may assign
to one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) except in the case of an
assignment of all of a Lender's rights and obligations under this Agreement,
the amount of the Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 (or, in the event that the assignment is to a Person that,
immediately prior to such assignment, was a Lender, $5,000,000), unless a
lesser amount shall be approved by the Administrative Agent and the Borrowers
in their reasonable judgment, and shall be an integral multiple of $1,000,000,
(ii) except in the case of an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being retained after giving effect to any such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $10,000,000, (iii) each such assignment shall be
to an Eligible Assignee and (iv) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its
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acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note or Notes subject (except in the case of an Affiliate of
a Lender) to such assignment and a processing and recordation fee of $3,000.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from such obligations under this
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 Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon any Agent, such assigning Lender 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 decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee or
an Affiliate of the assignor; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment
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under each Facility of, and principal amount of the Advances owing under each
Facility to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers, each Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for inspection by the
Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrowers. Within five Business Days after its receipt of such notice, the
Borrowers, at their own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note
or Notes to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it under a Facility or Facilities pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder under such Facility or Facilities, a new Note or Notes to
the order of the assigning Lender in an amount equal to the Commitment retained
by it hereunder. Such new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1 or A-2 hereto.
(e) Each Lender may sell participations in or to all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment or Commitments, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
or Commitments) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note or
Notes for all purposes of this Agreement, (iv) the Borrowers, the Agents and
the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of this Agreement or any Note,
or any consent to any departure by any Borrower therefrom, except to the extent
that such amendment, waiver or consent would (A) reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation or (B) postpone any date fixed
for any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation. If the Administrative Agent or such Lender shall request
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the written consent of such participant to any of the actions set forth in this
paragraph (e), and shall not receive either the consent thereto or denial
thereof in writing within five Business Days of making such request, such
participant shall be deemed to have given its consent.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any
information relating to the Borrowers furnished to such Lender by or on behalf
of the Borrowers; provided, however, that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information received by it
from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(h) The Borrowers and each Lender agree that, at the request of the
Administrative Agent, the Borrowers or such Lender will reexecute this
Agreement to reflect the assignments that have been effected in accordance with
this Section 8.07.
SECTION 8.08. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.09. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.10. No Liability of the Issuing Bank. The Borrowers assume all
risks of the acts or omissions of any beneficiary or transferee of any Letter
of Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions
of any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to
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bear any reference or adequate reference to the Letter of Credit; or (d) any
other circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except that the Borrowers shall have a claim against the
Issuing Bank, and the Issuing Bank shall be liable to the Borrowers, to the
extent of any direct, but not consequential, damages suffered by the Borrowers
that the Borrowers prove were caused by (i) the Issuing Bank's willful
misconduct or gross negligence in determining whether documents presented under
any Letter of Credit comply with the terms of the Letter of Credit or (ii) the
Issuing Bank's willful failure to make lawful payment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying
with the terms and conditions of the Letter of Credit. In furtherance and not
in limitation of the foregoing, the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
SECTION 8.11. Confidentiality. Neither any Agent nor any Lender shall
disclose any Confidential Information to any Person without the consent in
writing of the Borrowers, other than (a) to the Agents' or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective Eligible Assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process provided that unless contrary to applicable law or court order, the
Agents and each Lender shall use reasonable efforts prior to the disclosure of
Confidential Information to notify the Borrowers of each request under this
clause (b) made by a government authority (other than in connection with an
examination of the Agents or such Lender) or pursuant to legal process and (c)
as requested or required by any state, federal or foreign authority or examiner
regulating banks or banking.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each Borrower hereby further irrevocably consents to the
service of process in any action or proceeding in such courts by the mailing
thereof by any parties hereto by registered or certified mail, postage prepaid,
to such Borrower at its address specified pursuant to Section 8.02. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that any party may otherwise have to serve legal process
in any other manner permitted by law or to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
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(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrowers, the Agents, the
Issuing Bank, the Swing Line Bank and the Lenders hereby irrevocably waives all
right to trial by jury in any action, proceeding or counterclaim (whether based
on contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the Advances or the actions of any Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
94
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
GENERAL NUTRITION, INCORPORATED,
as Borrower
By /s/
-----------------------------
Title:
GENERAL NUTRITION CORPORATION,
as Borrower
By /s/
-----------------------------
Title: President
By /s/
-----------------------------
Title: Treasurer
GENERAL NUTRITION COMPANIES, INC.
By /s/
-----------------------------
Title:
95
BANQUE NATIONALE DE PARIS,
as Administrative Agent and Documentation
Agent
By /s/
-----------------------------
Title: Executive Vice President
By /s/
-----------------------------
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Syndication Agent
By /s/
-----------------------------
Title: Vice President
ABN AMRO BANK N.V.,
as Syndication Agent
By /s/
-----------------------------
Title: Group Vice President and Director
By /s/
-----------------------------
Title:
00
XXXXX XXXXX XXXXXXXX XXXX XX XXXXX XXXXXXXX
as Co-Agent
By /s/
-----------------------------
Title: Vice President
FLEET NATIONAL BANK
as Co-Agent
By /s/
------------------------------
Title: Assistant Vice President
THE FUJI BANK, LIMITED, NEW YORK BRANCH
as Co-Agent
By /s/
------------------------------
Title: Vice President & Manager
THE SUMITOMO BANK, LIMITED
as Co-Agent
By /s/
------------------------------
Title: Vice President and Manager
By /s/
------------------------------
Title:
00
XXXXXX XXXXXX XXXXXXXX XXXX XX XXXXXX
as Co-Agent
By /s/
------------------------------
Title: Vice President
The Restatement Lenders
ABN AMRO BANK N.V.
By /s/
------------------------------
Title: Group Vice President and Director
By /s/
------------------------------
Title: Group Vice President and
Operations Manager
BANQUE NATIONALE DE PARIS
By /s/
------------------------------
Title: Executive Vice President
By /s/
------------------------------
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/
------------------------------
Title: Vice President
98
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/
-------------------------------
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/
-------------------------------
Title: Senior Vice President
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By /s/
-------------------------------
Title: Vice President
FLEET NATIONAL BANK
By /s/
-------------------------------
Title: Assistant Vice President
KEYBANK NATIONAL ASSOCIATION
By /s/
-------------------------------
Title: Assistant Vice President
99
MELLON BANK, N.A.
By /s/
-----------------------------
Title: Vice President
MITSUBISHI TRUST & BANKING CORPORATION
(U.S.A.)
By /s/
-----------------------------
Title: First Vice President
NATIONAL CITY BANK OF PENNSYLVANIA
By /s/
-----------------------------
Title: Vice President
THE BANK OF NEW YORK
By /s/
-----------------------------
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By /s/
-----------------------------
Title: Vice President
000
XXX XXXX XXXX, XXXXXXX, XXX XXXX BRANCH
By /s/
------------------------------
Title: Vice President & Manager
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY
By /s/
-----------------------------
Title: Senior Vice President
THE SANWA BANK, LIMITED, NEW YORK BRANCH
By /s/
----------------------------
Title: Assistant Vice President
THE SUMITOMO BANK, LIMITED
By /s/
----------------------------
Title: Vice President and Manager
By /s/
----------------------------
Title: Vice President
101
THE SUMITOMO TRUST & BANKING CO., LTD., NEW
YORK BRANCH
By /s/
-----------------------------
Title: Senior Vice President
Manager, Corporate Finance Dept.
THE TOYO TRUST AND BANKING CO. LTD.
By /s/
-----------------------------
Title: Vice President
THE YASUDA TRUST AND BANKING CO., LTD., NEW
YORK BRANCH
By /s/
----------------------------
Title: Senior Vice President
UNITED STATES NATIONAL BANK OF OREGON
By /s/
-----------------------------
Title:
XXXXX FARGO BANK, N.A.
By /s/
----------------------------
Title: Vice President
By /s/
-----------------------------
Title: Assistant Vice President
102
BANQUE PARIBAS
By /s/
---------------------------
Title: Vice President
By /s/
---------------------------
Title: Group Vice President
CIBC INC.
By /s/
-----------------------------
Title: Director
NATIONAL AUSTRALIA BANK LIMITED
By /s/
----------------------------
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By /s/
-----------------------------
Title: Vice President
103
EXHIBIT A-1
TO THE FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF AMENDED AND RESTATED REVOLVING CREDIT NOTE
Dated: March __, 1997
FOR VALUE RECEIVED, the undersigned, [General Nutrition, Incorporated]
[General Nutrition Corporation], a Pennsylvania corporation (the "Borrower"),
HEREBY PROMISES TO PAY to the order of ____________________(the "Lender") for
the account of its Applicable Lending Office (as defined in the Credit Agreement
referred to below) the aggregate principal amount of the Revolving Credit
Advances (as defined below) owing to the Lender by the Borrower pursuant to the
Credit Agreement (as defined below) on March 31, 2002.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Banque Nationale de Paris, as Administrative Agent, at the
Federal Reserve Bank of New York, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Account No. 75042070103 in same day funds. Each Revolving Credit Advance owing
to the Lender by the Borrower and the maturity thereof, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto, which is part of
this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to in,
and is entitled to the benefits of, the Fourth Amended and Restated Credit
Agreement dated as of March __, 1997 (the "Credit Agreement") among the
Borrower, [General Nutrition, Incorporated] [General Nutrition Corporation],
General Nutrition Companies, Inc., the Lender, the Co-Agents and certain other
lenders parties thereto, and Banque Nationale de Paris, as Administrative Agent
for the Lender and such other lenders. The Credit Agreement, among other
things, (i) provides for the making of revolving credit advances (the
"Revolving Credit Advances") by the Lender to the Borrower from time to time in
an aggregate amount not to exceed, at any time outstanding, the dollar amount
first above mentioned, the indebtedness of the Borrower resulting from each
such Revolving Credit Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
104
2
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[GENERAL NUTRITION, INCORPORATED]
[GENERAL NUTRITION CORPORATION]
By
Title:
105
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made by
---------------- ----------------------- --------------------------- ----------------------------- -------------------
106
EXHIBIT A-2
TO THE FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF SWING LINE NOTE
$__________________ Dated: March __, 1997
FOR VALUE RECEIVED, the undersigned, [General Nutrition, Incorporated]
[General Nutrition Corporation], a Pennsylvania corporation (the "Borrower"),
HEREBY PROMISES TO PAY to the order of _______________________ (the "Swing Line
Bank") for the account of its Applicable Lending Office (as defined in the
Credit Agreement referred to below) the aggregate principal amount of the Swing
Line Advances (as defined below) owing to the Swing Line Bank by the Borrower
pursuant to the Credit Agreement (as defined below) on March 31, 2002.
The Borrower promises to pay interest on the unpaid principal amount of
each Swing Line Advance from the date of such Swing Line Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Banque Nationale de Paris, as Administrative Agent, at the
Federal Reserve Bank of New York, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Account No. 75042070103, in same day funds. Each Swing Line Advance owing to
the Swing Line Bank by the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the Swing Line Bank
and, prior to any transfer hereof, endorsed on the grid attached hereto, which
is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to in,
and is entitled to the benefits of, the Fourth Amended and Restated Credit
Agreement dated as of March __, 1997 (the "Credit Agreement") among the
Borrower, [General Nutrition, Incorporated] [General Nutrition Corporation],
General Nutrition Companies, Inc., the Lender, the Co-Agents and certain other
lenders parties thereto, and Banque Nationale de Paris, as Administrative Agent
for the Swing Line Bank and such other lenders. The Credit Agreement, among
other things, (i) provides for the making of swing line advances (the "Swing
Line Advances") by the Swing Line Bank to the Borrower from time to time in an
aggregate amount not to exceed, at any time outstanding, the U.S. dollar amount
first above mentioned, the indebtedness of the Borrower resulting from each
such Swing Line Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
107
2
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[GENERAL NUTRITION, INCORPORATED]
[GENERAL NUTRITION CORPORATION]
By
Title:
108
EXHIBIT B
TO THE FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF NOTICE OF BORROWING
Banque Nationale de Paris,
as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 [Date]
Attention: Xx. Xxxxx Xxxxxx
Ladies and Gentlemen:
The undersigned, [General Nutrition, Incorporated] [General Nutrition
Corporation], refers to the Fourth Amended and Restated Credit Agreement, dated
as of March 31, 1997 (the "Credit Agreement", the terms defined therein being
used herein as therein defined), among the undersigned, [General Nutrition,
Incorporated] [General Nutrition Corporation], General Nutrition Companies,
Inc., certain Lenders party thereto, the Co- Agents, the Syndication Agents and
Banque Nationale de Paris ("BNP"), as Administrative Agent and Documentation
Agent for said Lenders, and BNP as swing line bank, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ___________ , 19__
(ii) The Facility under which the Proposed Borrowing is requested is the
_____________ Facility.
(iii) The Type of Advances comprising the Proposed Borrowing is [Base Rate
Advances] [Eurodollar Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is [$_________]
109
2
[(v) The initial Interest Period for each Eurodollar Rate Advance made as
part of the Proposed Borrowing is ________ month[s].]
The undersigned hereby certifies that the following statements are true on
the date hereof and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in each Loan Document are
correct, before and after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date;
and
(B) no event has occurred and is continuing, or would result from such
Proposed Borrowing or from the application of the proceeds therefrom, that
constitutes a Default.
Very truly yours,
[GENERAL NUTRITION, INCORPORATED]
[GENERAL NUTRITION CORPORATION]
By_______________________________
Title:
110
EXHIBIT C
TO THE FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Fourth Amended and Restated Credit Agreement
dated as of March 31, 1997 (the "Credit Agreement") among General Nutrition,
Incorporated and General Nutrition Corporation, each a Pennsylvania corporation
(collectively, the "Borrowers"), General Nutrition Companies, Inc., the Lenders
(as defined in the Credit Agreement), Banque Nationale de Paris ("BNP"), as
administrative agent (the "Administrative Agent") and documentation agent for
the Lenders, the Syndication Agents (as defined in the Credit Agreement), the
Co-Agents (as defined in the Credit Agreement), and BNP as swing line bank.
Terms defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, an interest in and to the
Assignor's rights and obligations under the Credit Agreement as of the date
hereof equal to the percentage interest specified on Schedule 1 of all
outstanding rights and obligations under the Credit Agreement Facility or
Facilities specified on Schedule 1. After giving effect to such sale and
assignment, the Assignee's Commitments and the amount of the Advances owing
to the Assignee will be as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by
any Loan Party of any of its obligations under the Loan Documents or any
other instrument or document furnished pursuant thereto; and (iv) shall,
within three Business Days from the date specified in Section 4 below,
deliver the Note or Notes held by the Assignor and requests that the
Administrative Agent exchange such Note or Notes for a new Note or Notes
payable to the order of the Assignee in an amount equal to the Commitment or
Commitments assumed by the Assignee pursuant hereto and the Assignor in an
amount equal to the Commitment or Commitments retained by the Assignor under
the Credit Agreement, respectively, as specified on Schedule 1.
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3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (ii) agrees that it will, independently
and without reliance upon the Administrative Agent, the Assignor 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 decisions in taking
or not taking action under the Credit Agreement; (iii) confirms that it is
an Eligible Assignee; (iv) appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches
any U.S. Internal Revenue Service forms required under Section 2.11.
4. Following the execution of this Assignment and Acceptance by the
Assignee and the Assignor, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective date
for this Assignment and Acceptance (the "Effective Date") shall be the date
of acceptance hereof by the Administrative Agent.
5. Upon such acceptance and recording by the Administrative Agent, as of
the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to the Effective
Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
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8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart
of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1
to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
Effective Date: _____________, 19__
[NAME OF ASSIGNOR], as Assignor
By:
Title:
Dated: __________, 19__
[NAME OF ASSIGNEE], as Assignee
By:
Title:
Domestic Lending Office:
Eurodollar Lending Office:
Accepted this ____ day
of __________, 19__
BANQUE NATIONALE DE PARIS,
as Administrative Agent
By:
Title:
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SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
As to each Facility in respect of which an interest is being assigned:
Section 1.
Facility: _____
Percentage interest of all
outstanding rights and obligations
of the Facility being assigned: _____%
Section 2.
(a) Assigned Advances
Aggregate outstanding principal amount of Revolving Credit
Advances assigned: $_____________________
(b) Retained Advances
Aggregate outstanding principal amount of Revolving Credit
Advances retained: $_____________________
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EXHIBIT D TO THE FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT AS SEPARATELY EXECUTED
FOURTH AMENDED AND RESTATED PARENT GUARANTY
Dated as of March 31, 1997
from
GENERAL NUTRITION COMPANIES, INC.
and
GENERAL NUTRITION, INCORPORATED,
as Guarantors,
in favor of
THE LENDERS PARTY TO THE
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
REFERRED TO HEREIN
and
BANQUE NATIONALE DE PARIS,
as Administrative Agent and as Documentation Agent
and as Issuing Bank and as Swing Line Bank,
and
PNC BANK, NATIONAL ASSOCIATION and ABN AMRO BANK N.V.
as Syndication Agents,
and
THE SUMITOMO BANK, LIMITED, FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, THE FUJI BANK, LIMITED, NEW YORK BRANCH, FLEET NATIONAL
BANK and UNITED STATES NATIONAL BANK OF OREGON,
as Co-Agents
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T A B L E O F C O N T E N T S
Section Page
------- ----
SECTION 1. Guaranty; Limitation on Liability........................ 2
SECTION 2. Guaranty Absolute........................................ 3
SECTION 3. Waivers.................................................. 4
SECTION 4. Payments Free and Clear of Taxes, Etc.................... 5
SECTION 5. Representations and Warranties........................... 6
SECTION 6. Affirmative Covenants.................................... 7
SECTION 7. Negative Covenants....................................... 8
SECTION 8. Amendments, Etc.......................................... 10
SECTION 9. Notices, Etc............................................. 10
SECTION 10. No Waiver; Remedies...................................... 11
SECTION 11. Right of Setoff.......................................... 11
SECTION 12. Continuing Guaranty; Assignments Under the Fourth Amended
and Restated Credit Agreement........................ 11
SECTION 13. Governing Law............................................ 12
SECTION 14. Execution in Counterparts................................ 12
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FOURTH AMENDED AND RESTATED PARENT GUARANTY
FOURTH AMENDED AND RESTATED PARENT GUARANTY, dated as of March 31, 1997,
made by GENERAL NUTRITION COMPANIES, INC., a Delaware corporation ("GNCI") and
General Nutrition, Incorporated ("GNI"; GNI and GNCI each being a "Guarantor";
collectively being the "Guarantors"), in favor of the Lenders (the "Lenders")
party to the Fourth Amended and Restated Credit Agreement referred to below and
Banque Nationale de Paris ("BNP"), as administrative agent (together with any
successor appointed pursuant to Article VII of the Fourth Amended and Restated
Credit Agreement, being the "Administrative Agent") and as documentation agent
(the "Documentation Agent"), PNC Bank, National Association and ABN AMRO Bank
N.V., as syndication agents (the "Syndication Agents"), The Sumitomo Bank,
Limited, First Union National Bank of North Carolina, The Fuji Bank, Limited,
New York Branch, Fleet National Bank and United States National Bank of Oregon,
as co-agents (the "Co-Agents," and together with the Administrative Agent, the
Documentation Agent and the Syndication Agents the "Agents"), and BNP, as
issuing bank (the "Issuing Bank") and as swing line bank (the "Swing Line
Bank"), and any Lender that has entered into a Hedge Agreement with any Loan
Party (together with the Lenders, the Agents, the Swing Line Bank and the
Issuing Bank, the "Lender Parties" and each individually, a "Lender Party").
PRELIMINARY STATEMENTS:
(1) This Fourth Amended and Restated Guaranty is intended to continue the
guaranty in favor of the Lender Parties and BNP given by the Guarantors
pursuant to the Existing Guaranty (as hereinafter defined) without any
interruption.
(2) GNI and GNI's wholly owned Subsidiary, General Nutrition Corporation,
a Pennsylvania corporation ("GNC"; and together with GNI, collectively the
"Borrowers"), have entered into a Credit Agreement dated as of January 18,
1993, which Credit Agreement was amended and restated pursuant to the Second
Amended and Restated Credit Agreement dated as of July 19, 1994, which was
further amended and restated pursuant to the Third Amended and Restated Credit
Agreement dated as of March 21, 1996, (the "Existing Credit Agreement") with
the lenders referred to therein (the "Existing Lenders") and BNP, as agent for
the Existing Lenders.
(3) In connection with the Existing Credit Agreement, the Guarantors have
previously entered into the Third Amended and Restated GNCI Guaranty dated as
of July 21,
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1994 (the "Existing Guaranty") in favor of the Existing Lenders, the Existing
Lenders that have entered into a Hedge Agreement with any Loan Party referred
to therein, and BNP, as administrative agent for the Existing Lenders.
(4) The Existing Credit Agreement is being further amended and restated
pursuant to a Fourth Amended and Restated Credit Agreement dated as of March
31, 1997 (said agreement, as it may hereafter be amended or otherwise modified
from time to time, being the "Fourth Amended and Restated Credit Agreement",
the terms defined therein and not otherwise defined herein being used herein as
therein defined) among the Borrowers, the Lenders party thereto as Restatement
Lenders, the Agents, the Issuing Bank and the Swing Line Bank.
(5) It is a condition precedent to the effectiveness of the Fourth Amended
and Restated Credit Agreement that, on the Restatement Date, the Guarantors
shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Restatement Lenders to make Advances and the Issuing Bank to issue Letters
of Credit under the Fourth Amended and Restated Credit Agreement, the
Guarantors hereby agree as follows:
SECTION 1. Guaranty; Limitation on Liability. (a) Each of the Guarantors
hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations of the Loan Parties now or hereafter existing under the Loan
Documents, whether for principal, interest, fees, expenses or otherwise (such
Obligations being the "Guaranteed Obligations"), and agrees to pay any and all
reasonable expenses (including reasonable counsel fees and expenses) incurred
by the Administrative Agent or the other Lender Parties in enforcing any rights
under this Guaranty or any other Loan Document. Without limiting the generality
of the foregoing, the liability of each of the Guarantors shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
the Loan Parties to the Administrative Agent or the Lender Parties under the
Loan Documents but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving such Loan Party.
(b) Each Guarantor agrees that in the event any payment shall be required
to be made to the Lender Parties under this Guaranty or any other guaranty,
such Guarantor will contribute, to the maximum extent permitted by law, such
amounts to each other Guarantor and each other guarantor so as to maximize the
aggregate amount paid to the Lender Parties under the Loan Documents.
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SECTION 2. Guaranty Absolute. Each of the Guarantors guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
the Loan Documents, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any other Lender Party with respect thereto. The
Obligations of each of the Guarantors under this Guaranty are independent of
the Guaranteed Obligations or any other Obligations of any other Loan Party
under the Loan Documents, and a separate action or actions may be brought and
prosecuted against each such Guarantor to enforce this Guaranty, irrespective
of whether any action is brought against either Borrower or any other Loan
Party or whether the Borrowers are joined in any such action or actions. The
liability of each of the Guarantors under this Guaranty shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations or any other Obligations
of any other Loan Party under the Loan Documents, or any other amendment or
waiver of or any consent to departure from any Loan Document, including,
without limitation, any increase in the Guaranteed Obligations resulting
from the extension of additional credit to any of the Loan Parties or
otherwise;
(c) any taking, exchange, release or nonperfection of any collateral, or
any taking, release, amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds thereof, to all
or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other assets of either of the Borrowers or any of their Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or
existence of the Loan Parties or any of their Subsidiaries; or
(f) any other circumstance (including, without limitation, any statute of
limitations) that might otherwise constitute a defense available to, or a
discharge of, either of the Borrowers or a Guarantor or any other guarantor
or surety.
This Guaranty shall continue to be effective or to be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Administrative Agent or any of
the other Lender Parties upon the insolvency,
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bankruptcy or reorganization of either of the Borrowers or any other Loan Party
or otherwise, all as though such payment had not been made.
SECTION 3. Waivers. (a) Each of the Guarantors hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any other Lender Party protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take
any action against either of the Borrowers or any other Person or any
collateral.
(b) Each of the Guarantors hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to any of the Loan Documents or any of
the transactions contemplated thereby, or the actions of the Administrative
Agent or any other Lender Party in the negotiation, administration, performance
or enforcement thereof.
(c) Each of the Guarantors hereby irrevocably waives any duty on the part
of the Administrative Agent or any other Lender Party to disclose to such
Guarantor any matter, fact or thing relating to the business, operation or
condition of either of the Borrowers and their respective assets now or
hereafter known by the Administrative Agent or any other Lender Party.
(d) Each of the Guarantors hereby irrevocably waives any claim or other
rights that it may now or hereafter acquire against either of the Borrowers or
any other insider guarantor that arise from the existence, payment, performance
or enforcement of each Guarantor's Obligations under this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or any other
Lender Party against either of the Borrowers or any other insider guarantor or
any collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from either of the Borrowers or any other insider guarantor,
directly or indirectly, in cash or other property or by setoff or in any other
manner, payment or security on account of such claim, remedy or right. If any
amount shall be paid to any Guarantor in violation of the preceding sentence at
any time prior to the later of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and
(ii) the Termination Date, such amount shall be held in trust for the benefit
of the Administrative Agent and the other Lender Parties and shall forthwith be
paid to the Administrative Agent to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as collateral for any Guaranteed Obligations or other amounts payable under
this Guaranty thereafter arising. Each of the Guarantors acknowledges that it
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will receive direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waiver set forth in this
subsection (d) is knowingly made in contemplation of such benefits.
SECTION 4. Payments Free and Clear of Taxes, Etc. (a) Any and all payments
made by either Guarantor hereunder shall be made, in accordance with Section
2.11 of the Fourth Amended and Restated Credit Agreement, free and clear of and
without deduction for any and all present or future Taxes. If such Guarantor
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to the Administrative Agent or any other Lender Party, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 4), such Lender Party or Administrative Agent, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Guarantor shall make such deductions and (iii)
such Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each of the Guarantors agrees to pay any present or
future Other Taxes.
(c) The Guarantors jointly and severally agree to indemnify the
Administrative Agent and each other Lender Party for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 4) paid by the
Administrative Agent or such other Lender Party, as the case may be, and any
liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be made
within 30 days from the date the Administrative Agent or such other Lender
Party, as the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each of the
Guarantors will furnish to the Administrative Agent, at its address referred to
in Section 8.02 of the Fourth Amended and Restated Credit Agreement,
appropriate evidence of payment thereof. If no Taxes are payable in respect of
any payment hereunder by or on behalf of such Guarantor through an account or
branch outside the United States or on behalf of such Guarantor by a payor that
is not a United States person (as defined in Section 2.11(d) of the Fourth
Amended and Restated Credit Agreement), such Guarantor will furnish, or will
cause such payor to furnish, to the Administrative Agent a certificate from
each appropriate taxing authority or authorities, or an opinion of counsel
acceptable to the Administrative Agent, in either case stating that such
payment is exempt from or not subject to Taxes.
(e) Without prejudice to the survival of any other agreement of any
Guarantor hereunder, the agreements and obligations of such Guarantor contained
in this Section 4 shall
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survive the payment in full of the Guaranteed Obligations and all other amounts
payable under this Guaranty.
SECTION 5. Representations and Warranties. GNCI hereby represents and
warrants as follows:
(a) Due Incorporation, Etc. GNCI (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed, except where the failure to so qualify or be licensed would not
have a Material Adverse Effect and (iii) has all requisite corporate power
and authority to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
(b) Due Authorization and Execution, Etc. The execution, delivery and
performance by GNCI of this Guaranty and the consummation of the
transactions contemplated hereby, are within GNCI's corporate powers, have
been duly authorized by all necessary corporate action, and do not (i)
contravene GNCI's charter or bylaws, (ii) violate any law (including,
without limitation, the Securities Exchange Act of 1934 and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime Control
Act of 1970), rule, regulation (including, without limitation, Regulations
G, T, U and X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree, determination or award, (iii)
conflict with or result in the breach of, or constitute a default under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting GNCI or any of its properties or (iv)
result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of GNCI. GNCI is not in violation of any
other law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the violation
or breach of which could have a Material Adverse Effect.
(c) Government Consents. No authorization, approval or other action by,
and no notice to or filing with, any governmental authority or regulatory
body or any other third party is required for the due execution, delivery or
performance by GNCI of this Guaranty.
(d) Legal, Valid and Binding Nature. This Guaranty has been duly executed
and delivered, and is the legal, valid and binding obligation of GNCI,
enforceable against GNCI in accordance with its terms.
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(e) Absence of Litigation. No actions, suits, investigations, litigation
or proceedings are pending or, to the knowledge of GNCI, threatened against
or affecting GNCI or the properties of GNCI before any court, governmental
agency or arbitrator that (i) would reasonably be likely to have a Material
Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of this Guaranty.
(f) Agreements of GNCI. GNCI is not a party to any agreement or other
instrument other than this Guaranty, the Tax Sharing Agreement, the
Intercompany Subordination Agreement and the other Related Documents to
which GNCI is a party, except as contemplated by the Loan Documents.
SECTION 6. Affirmative Covenants. GNCI covenants and agrees that, so long
as any part of the Guaranteed Obligations shall remain unpaid, any Letter of
Credit shall be outstanding or any Lender shall have any Commitment, GNCI will:
(a) Compliance with Laws, Etc. Comply in all material respects with all
applicable laws (including, without limitation, Environmental Laws), rules,
regulations and orders, such compliance to include, without limitation,
compliance with ERISA and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might by
law become a Lien upon its property, which in any case exceed in the
aggregate $500,000; provided, however, that GNCI shall be required to pay or
discharge any such tax, assessment, charge, levy or claim that is being
contested in good faith and by proper proceedings, diligently pursued, and
as to which appropriate reserves are being maintained, unless and until any
Lien resulting therefrom securing Indebtedness in excess of $500,000 in the
aggregate attaches to its property and becomes enforceable against its other
creditors.
(c) Preservation of Corporate Existence, Etc. Preserve and maintain its
corporate existence, rights (charter and statutory) and franchises.
(d) Visitation Rights. At any reasonable time and from time to time upon
reasonable notice to GNCI, permit the Administrative Agent or any of the
other Lender Parties, or any agents or representatives thereof, to examine
and make copies of and abstracts from the records and books of account of,
and visit the properties of, GNCI, and to discuss the affairs, finances and
accounts of GNCI with any of its officers or directors and with its
independent certified public accountants; provided
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that GNCI shall have the right to have a representative of GNCI present
during any discussions with its independent public accountants.
(e) Keeping of Books. Keep proper books of record and account in which
full and correct entries shall be made of all financial transactions and the
assets and business of GNCI in accordance with GAAP.
(f) Performance of Related Documents. (i) Perform and observe in all
material respects all of the terms and provisions of each Related Document
to be performed or observed by it, maintain each such Related Document in
full force and effect and enforce in all material respects each such Related
Document in accordance with its terms, in each case except to the extent
that the failure to so act could not reasonably be expected to adversely
affect the interest or rights of the Administrative Agent or the other
Lender Parties in any manner and take all such action to such end as may be
from time to time reasonably requested by the Administrative Agent and (ii)
upon the reasonable request of the Administrative Agent, make to each other
party to each such Related Document such demands and requests for
information and reports or for action as GNCI is entitled to make under such
Related Document.
(g) Transactions with Affiliates. Conduct all transactions permitted under
the Loan Documents with any of its Affiliates on terms that are fair and
reasonable and no less favorable to GNCI than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
SECTION 7. Negative Covenants. GNCI covenants and agrees that, so long as
any part of the Guaranteed Obligations shall remain unpaid, any Letter of
Credit shall be outstanding or any Lender shall have any Commitment, GNCI will
not:
(a) Business. Enter into or conduct any business or engage in any activity
except (i) the ownership of the capital stock of GNI and (ii) the
performance of its obligations under the documents referred to in Section
5(f) to which it is or is to be a party or otherwise contemplated by the
Loan Documents.
(b) Liens, Etc. Create, incur, assume or suffer to exist, any Lien on or
with respect to any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter acquired, or sign or
file, under the Uniform Commercial Code of any jurisdiction, a financing
statement that names GNCI or any of its Subsidiaries as debtor, or sign any
security agreement authorizing any secured party thereunder to file such
financing statement, or assign any accounts or other right to receive
income.
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(c) Indebtedness. Create, incur, assume or suffer to exist, any
Indebtedness other than Indebtedness created by GNCI's obligations under
this Guaranty.
(d) Lease Obligations. Create, incur, assume or suffer to exist any
obligations as lessee for the rental or hire of real or personal property of
any kind.
(e) Mergers, Etc. Merge into or consolidate with any Person or permit any
Person to merge into it, or transfer or dispose of all or substantially all
of its property and assets, except that GNI may merge with or into or
consolidate with or into, or transfer all or substantially all of its
property and assets to GNCI; provided, however, that immediately after
giving effect thereto, no event shall occur and be continuing that
constitutes a Default.
(f) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of
any assets, or grant any option or other right to purchase, lease or
otherwise acquire any assets.
(g) Investments in Other Persons. Make or hold any Investment in any
Person other than (i) Investments in GNI consisting of equity or
Intercompany Subordinated Debt, (ii) Investments outstanding on the date of
this Agreement in Diet Center, Inc. or any Investments issued as a
replacement of or in exchange thereof and (iii) Investments in connection
with its 1996 Management and Stock Purchase Plan, as amended from time to
time, or any similar type management stock option plan.
(h) Charter Amendments. Amend, modify or change in any manner (i) its
certificate of incorporation or (ii) its bylaws (except to increase the
number of authorized shares, to authorize a staggered board of directors and
to provide for anti-takeover provisions) if such amendment, modification or
change could reasonably be expected to adversely affect the interest or
rights of the Administrative Agent or the other Lender Parties in any
manner.
(i) Accounting Changes. Make or permit any change in accounting policies
or reporting practices (including, without limitation, any change in its
fiscal year), except as required or permitted by generally accepted
accounting principles, securities laws or the rules of any stock exchange
upon which GNCI's capital stock may be listed.
(j) Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any manner,
or make any payment in violation of any subordination terms of, any
Indebtedness.
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(k) Amendment, Etc. of Related Documents. Cancel or terminate any Related
Document or consent to or accept any cancellation or termination thereof,
amend, modify or change in any material respect any term or condition of any
Related Document or give any consent, waiver or approval thereunder (it
being acknowledged by GNCI that the financial or payment terms of any such
Related Document are material terms and conditions thereof), waive any
default under or any breach of any term or condition of any Related
Document, agree in any manner to any other amendment, modification or change
of any term or condition of any Related Document or take any other action in
connection with any Related Document, in each case that could reasonably be
expected to impair the value of the interest or rights of GNCI thereunder or
that could reasonably be expected to impair the interest or rights of the
Administrative Agent or the other Lender Parties in any manner.
(l) Negative Pledge. Enter into or suffer to exist any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any
of its property or assets.
(m) Partnerships. Become a general partner in any general or limited
partnership.
SECTION 8. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty and no consent to any departure by any Guarantor therefrom shall
in any event be effective unless the same shall be in writing and signed by the
Administrative Agent and the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, (a) limit the liability of any
Guarantor hereunder or (b) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Lenders, that
shall be required for the Lenders or any of them to take any action hereunder.
SECTION 9. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy, telex or cable
communication) and mailed, telegraphed, telecopied, telexed, cabled or
delivered (a) if to GNCI, addressed to it at 000 Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Chief Financial Officer, (b) if to GNI,
addressed to it at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Chief Financial Officer, with a copy to Xxxxxxxx, Xxxxxxx & Xxxxxxx, A
Professional Corporation, addressed to it at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX
00000, Attention: Xxxxxxx X. Xxxxxx or (c) if to the Administrative Agent or
any Lender, at the address of the Administrative Agent or such Lender referred
to in Section 8.02 of the Fourth Amended and Restated Credit Agreement, or as
to any such party at such other address as shall be designated by such party in
a written notice to each other party complying as to delivery with the terms of
this Section 8. All such notices and other communications
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11
shall, when mailed, telegraphed, telecopied, telexed or cabled, respectively,
be effective when deposited in the mails, telecopied, delivered to the
telegraph company, transmitted by telecopier, confirmed by telex answerback or
delivered to the cable company, respectively.
SECTION 10. No Waiver; Remedies. No failure on the part of the
Administrative Agent or any other Lender Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof or consent
thereto; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 11. Right of Setoff. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Fourth Amended and
Restated Credit Agreement to authorize the Administrative Agent to declare the
Notes due and payable pursuant to the provisions of said Section 6.01, each
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of any of the Guarantors against any and all of the Obligations of such
Guarantor now or hereafter existing under this Guaranty, whether or not such
Lender shall have made any demand under this Guaranty and although such
Obligations may be unmatured. Each Lender agrees promptly to notify each such
Guarantor after any such setoff and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Lender under this Section 11
are in addition to other rights and remedies (including, without limitation,
other rights of setoff) that such Lender may have.
SECTION 12. Continuing Guaranty; Assignments Under the Fourth Amended and
Restated Credit Agreement. This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until the later of (i) the payment in full in
cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty and (ii) the Termination Date, (b) be binding upon each Guarantor, its
successors and assigns and (c) inure to the benefit of and be enforceable by
the Administrative Agent, the other Lender Parties and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c), any Lender may assign or otherwise transfer all or any
portion of its rights and obligations under the Fourth Amended and Restated
Credit Agreement (including, without limitation, all or any portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it) to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Lender, herein or
otherwise, in each case as provided in Section 8.07 of the Fourth Amended and
Restated Credit Agreement.
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SECTION 13. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 14. Execution in Counterparts. This Guaranty may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Guaranty by
telecopier shall be effective as delivery of a manually executed counterpart of
this Guaranty.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
GENERAL NUTRITION COMPANIES, INC.
By /s/
-----------------------------
Title:
GENERAL NUTRITION, INCORPORATED
By /s/
-----------------------------
Title:
128
EXHIBIT E TO THE FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT AS SEPARATELY EXECUTED
FOURTH AMENDED AND RESTATED PARENT GUARANTY
Dated as of March 31, 1997
from
GENERAL NUTRITION COMPANIES, INC.
and
GENERAL NUTRITION, INCORPORATED,
as Guarantors,
in favor of
THE LENDERS PARTY TO THE
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
REFERRED TO HEREIN
and
BANQUE NATIONALE DE PARIS,
as Administrative Agent and as Documentation Agent
and as Issuing Bank and as Swing Line Bank,
and
PNC BANK, NATIONAL ASSOCIATION and ABN AMRO BANK N.V.
as Syndication Agents,
and
THE SUMITOMO BANK, LIMITED, FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, THE FUJI BANK, LIMITED, NEW YORK BRANCH, FLEET NATIONAL
BANK and UNITED STATES NATIONAL BANK OF OREGON,
as Co-Agents
129
T A B L E O F C O N T E N T S
Section Page
SECTION 1. Guaranty; Limitation on Liability....................... 2
SECTION 2. Guaranty Absolute....................................... 3
SECTION 3. Waivers................................................. 4
SECTION 4. Payments Free and Clear of Taxes, Etc................... 5
SECTION 5. Representations and Warranties.......................... 6
SECTION 6. Covenants............................................... 8
SECTION 7. Amendments, Etc......................................... 8
SECTION 8. Notices, Etc............................................ 9
SECTION 9. No Waiver; Remedies..................................... 9
SECTION 10. Right of Setoff......................................... 9
SECTION 11. Continuing Guaranty; Assignments Under the Fourth
Amended and Restated Credit Agreement........... 10
SECTION 12. Governing Law........................................... 10
SECTION 13. Execution in Counterparts............................... 10
130
EXECUTION COPY
FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY
Dated as of March 31, 1997
from
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Guarantors,
in favor of
THE LENDERS PARTY TO THE FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT REFERRED TO HEREIN
and
BANQUE NATIONALE DE PARIS,
as Administrative Agent and Documentation Agent and
Issuing Bank and Swing Line Bank,
and
PNC BANK, NATIONAL ASSOCIATION and ABN AMRO BANK N.V.
as Syndication Agents,
and
THE SUMITOMO BANK, LIMITED, FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, THE FUJI BANK, LIMITED, NEW YORK BRANCH, FLEET NATIONAL
BANK and UNITED STATES NATIONAL BANK OF OREGON
as Co-Agents
131
FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY
FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY, dated as of March 31,
1997 made by the Persons listed on the signature pages hereof (each a
"Subsidiary Guarantor"), in favor of the Lenders (the "Lenders") party to the
Fourth Amended and Restated Credit Agreement referred to below and Banque
Nationale de Paris ("BNP"), as administrative agent (together with any
successor agent appointed pursuant to Article VII of the Fourth Amended and
Restated Credit Agreement referred to below, the "Administrative Agent") and as
documentation agent (the "Documentation Agent"), and PNC Bank, National
Association and ABN AMRO Bank N.V., as syndication agents (the "Syndication
Agents"), The Sumitomo Bank, Limited, First Union National Bank of North
Carolina, The Fuji Bank, Limited, New York Branch, Fleet National Bank and
United States National Bank of Oregon, as co-agents (the "Co-Agents,"and,
together with the Administrative Agent, the Documentation Agent and the
Syndication Agents, the "Agents") and BNP, as issuing bank (the "Issuing Bank")
and as swing line bank (the "Swing Line Bank"), and any Lender that has entered
into a Hedge Agreement with any Loan Party (together with the Lenders, the
Agents, the Swing Line Bank, and the Issuing Bank, the "Lender Parties" and,
each individually, a "Lender Party").
PRELIMINARY STATEMENTS:
(1) This Fourth Amended and Restated Subsidiary Guaranty is intended to
continue the guaranty in favor of the Lender Parties and BNP given by the
Subsidiary Guarantors pursuant to the Existing Subsidiary Guaranty (as
hereinafter defined) without any interruption.
(2) General Nutrition, Incorporated, a Pennsylvania corporation ("GNI")
and GNI's wholly owned Subsidiary, General Nutrition Corporation, a
Pennsylvania corporation ("GNC"; and together with GNI, collectively the
"Borrowers") have entered into a Credit Agreement dated as of January 18, 1993,
which Credit Agreement was amended and restated pursuant to the Second Amended
and Restated Credit Agreement dated as of July 19, 1994, which Credit Agreement
was further amended and restated pursuant to the Third Amended and Restated
Credit Agreement dated as of March 21, 1996 (the "Existing Credit Agreement")
with the lenders referred to therein (the "Existing Lenders") and BNP, as agent
for the Existing Lenders.
(3) In connection with the Existing Credit Agreement, the Subsidiary
Guarantors have previously entered into the Third Amended and Restated
Subsidiary Guaranty dated as of March 21, 1997, (the "Existing Subsidiary
Guaranty") in favor of the Existing Lenders, the Lenders that have entered into
a Hedge Agreement with any Loan
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Party, and BNP, as administrative agent for the Existing Lenders.
(4) The Existing Credit Agreement is being further amended and restated
pursuant to a Fourth Amended and Restated Credit Agreement dated as of March
31, 1997 (said agreement, as it may hereafter be amended or otherwise modified
from time to time, being the "Fourth Amended and Restated Credit Agreement,"
the terms defined therein and not otherwise defined herein being used herein as
therein defined) among the Borrowers, the Lenders party thereto as Restatement
Lenders, the Agents, the Issuing Bank and the Swing Line Bank.
(5) It is a condition precedent to the effectiveness of the Fourth Amended
and Restated Credit Agreement, that on the Restatement Date, each Subsidiary
Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Restatement Lenders to make Advances and the Issuing Bank to issue Letters
of Credit under the Fourth Amended and Restated Credit Agreement, each
Subsidiary Guarantor hereby agrees as follows:
SECTION 1. Guaranty; Limitation on Liability. (a) Each of the Subsidiary
Guarantors hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all Obligations of the Loan Parties now or hereafter existing
under the Loan Documents, whether for principal, interest, fees, expenses or
otherwise (such Obligations being the "Guaranteed Obligations"), and agrees to
pay any and all reasonable expenses (including reasonable counsel fees and
expenses) incurred by the Administrative Agent or the other Lender Parties in
enforcing any rights under this Guaranty or any other Loan Document. Without
limiting the generality of the foregoing, the liability of each of the
Subsidiary Guarantors shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Loan Parties to the
Administrative Agent or the Lender Parties under the Loan Documents but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such Loan Party.
(b) (i) Each Guarantor and by its acceptance of this Subsidiary Guaranty, the
Agent and each of the other Lender Parties, hereby confirms that it is the
intention of all such parties that this Subsidiary Guaranty not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to this Subsidiary Guaranty. To
effectuate the foregoing intention, the Agents, the other Lender Parties and
the Subsidiary Guarantors hereby irrevocably agree that the Obligations of each
Subsidiary Guarantor under this Guaranty shall not exceed the greater of (A)
the net benefit realized by such Subsidiary Guarantor from the proceeds of the
Advances made from time to
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3
time by the Borrower to such Subsidiary Guarantor or to any subsidiary of such
Subsidiary Guarantor and (B) the maximum amount that will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such
Subsidiary Guarantor that are relevant under such laws, and after giving effect
to any collections from, rights to receive contribution from or payments made
by or on behalf of any other Subsidiary Guarantor in respect of the Obligations
of such other Subsidiary Guarantor under this Guaranty, result in the
Obligations of such Subsidiary Guarantor under this Subsidiary Guaranty not
constituting a fraudulent transfer or conveyance. For purposes hereof,
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal or state law
for the relief of debtors.
(ii) Each Subsidiary Guarantor agrees that in the event any payment shall
be required to be made to the Lender Parties under this Guaranty or any other
guaranty, such Guarantor will contribute, to the maximum extent permitted by
law, such amounts to each other Subsidiary Guarantor and each other guarantor
so as to maximize the aggregate amount paid to the Lender Party under the Loan
Documents.
SECTION 2. Guaranty Absolute. Each of the Subsidiary Guarantors guarantees
that the Guaranteed Obligations will be paid strictly in accordance with the
terms of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any other Lender Party with respect
thereto. The Obligations of each of the Subsidiary Guarantors under this
Guaranty are independent of the Guaranteed Obligations or any other Obligations
of any other Loan Party under the Loan Documents, and a separate action or
actions may be brought and prosecuted against each such Subsidiary Guarantor to
enforce this Guaranty, irrespective of whether any action is brought against
either Borrower or any other Loan Party or whether the Borrowers are joined in
any such action or actions. The liability of each of the Subsidiary Guarantors
under this Guaranty shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations or any other Obligations
of any Loan Party under the Loan Documents, or any other amendment or waiver
of or any consent to departure from any Loan Document, including, without
limitation, any increase in the Guaranteed Obligations resulting from the
extension of additional credit to any of the Loan Parties or otherwise;
(c) any taking, exchange, release or nonperfection of any collateral, or
any taking, release, amendment or waiver of or consent to departure from any
other
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4
guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds thereof, to all
or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other assets of either of the Borrowers or any of their Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or
existence of the Loan Parties; or
(f) any other circumstance (including, without limitation, any statute of
limitations) that might otherwise constitute a defense available to, or a
discharge of, either of the Borrowers or a Subsidiary Guarantor or any other
guarantor or surety.
This Guaranty shall continue to be effective or to be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Administrative Agent or any of
the other Lender Parties upon the insolvency, bankruptcy or reorganization of
either of the Borrowers or any other Loan Party or otherwise, all as though
such payment had not been made.
SECTION 3. Waivers. (a) Each of the Subsidiary Guarantors hereby waives
promptness, diligence, notice of acceptance and any other notice with respect
to any of the Guaranteed Obligations and this Guaranty and any requirement that
the Administrative Agent or any other Lender Party protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take
any action against either of the Borrowers or any other Person or any
collateral.
(b) Each of the Subsidiary Guarantors hereby irrevocably waives all right
to trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents or any of the transactions contemplated thereby, or the actions of
the Administrative Agent or any other Lender Party in the negotiation,
administration, performance or enforcement thereof.
(c) Each of the Subsidiary Guarantors hereby irrevocably waives any duty
on the part of the Administrative Agent or any other Lender Party to disclose
to such Subsidiary Guarantor any matter, fact or thing relating to the
business, operation or condition of either of the Borrowers and their
respective assets now or hereafter known by the Administrative Agent or any
other Lender Party.
(d) Each of the Subsidiary Guarantors hereby irrevocably waives any claim
or other rights that it may now or hereafter acquire against either of the
Borrowers or any other insider guarantor that arise from the existence,
payment, performance or enforcement of each
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5
Subsidiary Guarantor's Obligations under this Guaranty or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or any other
Lender Party against either of the Borrowers or any other insider guarantor or
any collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from either of the Borrowers or any other insider guarantor,
directly or indirectly, in cash or other property or by setoff or in any other
manner, payment or security on account of such claim, remedy or right. If any
amount shall be paid to any Subsidiary Guarantor in violation of the preceding
sentence at any time prior to the later of (i) the payment in full in cash of
the Guaranteed Obligations and all other amounts payable under this Guaranty
and (ii) the Termination Date, such amount shall be held in trust for the
benefit of the Administrative Agent and the other Lender Parties and shall
forthwith be paid to the Administrative Agent to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. Each of the Subsidiary
Guarantors acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by the Loan Documents and that the
waiver set forth in this subsection (d) is knowingly made in contemplation of
such benefits.
SECTION 4. Payments Free and Clear of Taxes, Etc. (a) Any and all payments
made by any Subsidiary Guarantor hereunder shall be made, in accordance with
Section 2.11 of the Fourth Amended and Restated Credit Agreement, free and
clear of and without deduction for any and all present or future Taxes. If such
Subsidiary Guarantor shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to the Administrative Agent or any other
Lender Party, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 4), the Administrative Agent or such
other Lender Party, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Subsidiary
Guarantor shall make such deductions and (iii) such Subsidiary Guarantor shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, each of the Subsidiary Guarantors agree to pay any
present or future Other Taxes.
(c) The Subsidiary Guarantors jointly and severally agree to indemnify the
Administrative Agent and each other Lender Party for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 4) paid by the
Administrative Agent or such other Lender Party, as the case may be, and any
liability (including penalties, additions to tax,
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6
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date the Administrative
Agent or such other Lender Party, as the case may be, makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, each of the
Subsidiary Guarantors will furnish to the Administrative Agent, at its address
referred to in Section 8.02 of the Fourth Amended and Restated Credit
Agreement, appropriate evidence of payment thereof. If no Taxes are payable in
respect of any payment hereunder by or on behalf of such Subsidiary Guarantor
through an account or branch outside the United States or on behalf of such
Subsidiary Guarantor by a payor that is not a United States person (as defined
in Section 2.11(d) of the Fourth Amended and Restated Credit Agreement), such
Subsidiary Guarantor will furnish, or will cause such payor to furnish, to the
Administrative Agent a certificate from each appropriate taxing authority or
authorities, or an opinion of counsel acceptable to the Administrative Agent,
in either case stating that such payment is exempt from or not subject to
Taxes.
(e) Without prejudice to the survival of any other agreement of any
Subsidiary Guarantor hereunder, the agreements and obligations of such
Subsidiary Guarantor contained in this Section 4 shall survive the payment in
full of the Guaranteed Obligations and all other amounts payable under this
Guaranty.
SECTION 5. Representations and Warranties. Each Guarantor hereby
represents and warrants as follows:
(a) Such Guarantor other than GND (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed except where the failure to so qualify or be licensed would not
have a Material Adverse Effect and (iii) has all requisite corporate power
and authority to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted. All of the
outstanding capital stock of such Guarantor has been validly issued and is
fully paid and non-assessable. GND (i) is a business trust duly organized,
validly existing under the laws of the Commonwealth of Pennsylvania, (ii) is
duly qualified as a foreign business trust in each other jurisdiction in
which it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed, except where the failure to so
qualify or be licensed would not have a Material Adverse Effect and (iii)
has all requisite power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as proposed to
be conducted. The instrument organizing GND
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as a business trust has been filed in the Department of State of the
Commonwealth of Pennsylvania and the sole beneficiaries of GND are GNS and
GNIC.
(b) The execution, delivery and performance by such Guarantor of this
Guaranty and each other Loan Document and each Related Document to which it
is or is to be a party, and the consummation of the transactions
contemplated hereby, are within such Guarantor's corporate powers, have been
duly authorized by all necessary corporate action, and do not (i) contravene
such Guarantor's charter or bylaws, (ii) violate any law (including, without
limitation, the Securities Exchange Act and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970),
rule, regulation (including, without limitation, Regulation G, T, U and X of
the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict with or
result in the breach of, or constitute a default under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting such Guarantor, any of its Subsidiaries or any of
their properties or (iv) result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of such Guarantor or
any of its Subsidiaries. The execution, delivery and performance by GND of
each Loan Document and each Related Document to which it is or is to be a
party, and the consummation of the transactions contemplated hereby, are
within the powers of GND, have been duly authorized by all necessary action
by and consent of its trustees, and do not (i) contravene GND's
organizational documents or bylaws, (ii) violate any law (including, without
limitation, the Securities Exchange Act and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970),
rule, regulation (including, without limitation, Regulations G, T, U and X
of the Board of Governors of the Federal Reserve System), order, writ,
judgement, injunction, decree, determination or award, (iii) conflict with
or result in the breach of, or constitute a default under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting GND, any of its Subsidiaries or any of
its properties or (iv) result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of GND or any of its
Subsidiaries. Neither such Guarantor nor any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which would have a Material Adverse
Effect.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other
third party is required for (i) the due execution, delivery, recordation,
filing or performance by such Guarantor of this Guaranty, the Notes or any
other Loan Document or any
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8
Related Document to which it is or is to be a party, or for the consummation
of the transactions contemplated hereby, or (ii) the exercise by the Agent
or any Lender Party of its rights under the Loan Documents.
(d) This Guaranty has been, and each other Loan Document and each Related
Document to which such Guarantor will be a party when delivered pursuant to
the Credit Agreement will have been, duly executed and delivered by such
Guarantor. This Guaranty is, and each of the Notes, and each other Loan
Document and each Related Document to which it will be a party when
delivered pursuant to the Credit Agreement will be, the legal, valid and
binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms.
(e) There is no action, suit, investigation, litigation or proceeding
affecting such Guarantor, any of its Subsidiaries or any of its properties,
including any Environmental Action, pending or, to the best of the
Guarantor's knowledge, threatened before any court, governmental agency or
arbitrator that (i) would be reasonably likely to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability
of this Guaranty, any Note, any other Loan Document or any Related Document
or the consummation of the transactions contemplated by the Loan Documents.
(f) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(g) Such Guarantor has, independently and without reliance upon the Agent
or any other Secured Party and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter
into this Guaranty, and such Guarantor has established adequate means of
obtaining from any other Loan Parties on a continuing basis information
pertaining to, and is now and on a continuing basis will be completely
familiar with, the financial condition, operations, properties and prospects
of such other Loan Parties.
SECTION 6. Covenants. Each Guarantor covenants and agrees that, so long as
any part of the Guaranteed Obligations shall remain unpaid, any Letter of
Credit shall be outstanding, or any Lender Party shall have any Commitment or
any obligation under any Hedge Agreements, such Guarantor will, unless the
Required Lenders shall otherwise consent in writing, perform or observe, and
cause its Subsidiaries to perform or observe, all of the terms, covenants and
agreements that the Loan Documents state that the Borrowers are to cause such
Guarantor or such Subsidiaries to perform or observe.
SECTION 7. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty and no consent to any departure by any Subsidiary Guarantor
therefrom
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shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders, (a) limit the
liability of any Subsidiary Guarantor hereunder or (b) change the percentage of
the Commitments or of the aggregate unpaid principal amount of the Notes, or
the number of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder.
SECTION 8. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy, telex or cable
communication) and mailed, telegraphed, telecopied, telexed, cabled or
delivered (a) if to any Subsidiary Guarantor, addressed to it at 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Chief Financial Officer,
with a copy to Xxxxxxxx, Xxxxxxx & Xxxxxxx, A Professional Corporation, at 000
Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxx or (b) if to the
Administrative Agent or any Lender, at the address of the Administrative Agent
or such Lender referred to in Section 8.02 of the Fourth Amended and Restated
Credit Agreement, or as to any such party at such other address as shall be
designated by such party in a written notice to each other party complying as
to delivery with the terms of this Section 6. All such notices and other
communications shall, when mailed, telegraphed, telecopied, telexed or cabled,
respectively, be effective when deposited in the mails, telecopied, delivered
to the telegraph company, transmitted by telecopier, confirmed by telex
answerback or delivered to the cable company, respectively.
SECTION 9. No Waiver; Remedies. No failure on the part of the
Administrative Agent or any other Lender Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof or consent
thereto; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 10. Right of Setoff. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Fourth Amended and
Restated Credit Agreement to authorize the Administrative Agent to declare the
Notes due and payable pursuant to the provisions of said Section 6.01, each
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of any of the Subsidiary Guarantors against any and all of the
Obligations of such Subsidiary Guarantor now or hereafter existing under this
Guaranty, whether or not such Lender shall have made any demand under this
Guaranty and although such Obligations may be unmatured. Each
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10
Lender agrees promptly to notify each such Subsidiary Guarantor after any such
setoff and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section 8 are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender may have.
SECTION 11. Continuing Guaranty; Assignments Under the Fourth Amended and
Restated Credit Agreement. This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until the later of (i) the payment in full in
cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty and (ii) the Termination Date, (b) be binding upon each Subsidiary
Guarantor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Administrative Agent, the other Lender Parties and their
respective successors, transferees and assigns. Without limiting the generality
of the foregoing clause (c), any Lender may assign or otherwise transfer all or
any portion of its rights and obligations under the Fourth Amended and Restated
Credit Agreement (including, without limitation, all or any portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it) to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Lender, herein or
otherwise, in each case as provided in Section 8.07 of the Fourth Amended and
Restated Credit Agreement.
SECTION 12. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 13. Execution in Counterparts. This Guaranty may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Guaranty by
telecopier shall be effective as delivery of a manually executed counterpart of
this Guaranty.
141
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
GENERAL NUTRITION CORPORATION
By /s/
--------------------------
Title: President
By /s/
--------------------------
Title: Treasurer
GENERAL NUTRITION PRODUCTS, INC.
By /s/
--------------------------
Title:
NATURE'S FRESH NORTHWEST, INC.
By /s/
--------------------------
Title:
GENERAL NUTRITION GOVERNMENT SERVICES, INC.
By /s/
--------------------------
Title:
142
GNC (CANADA) HOLDING COMPANY
By /s/
--------------------------
Title:
GENERAL NUTRITION INVESTMENT COMPANY
By /s/
--------------------------
Title:
GENERAL NUTRITION SERVICES, INC.
By /s/
--------------------------
Title:
GNC FRANCHISING, INC.
By /s/
--------------------------
Title:
GNC LIMITED
By /s/
--------------------------
Title:
GENERAL NUTRITION INTERNATIONAL, INC.
By /s/
--------------------------
Title:
143
GENERAL NUTRITION DISTRIBUTION COMPANY
By /s/
--------------------------
Title: Treasurer
GNC (UK) HOLDING COMPANY
By /s/
--------------------------
Title:
NATURE FOOD CENTRES, INC.
By /s/
--------------------------
Title:
NFC, INC.
By /s/
--------------------------
Title:
VSS, INC.
By /s/
--------------------------
Title:
GNC INTERNATIONAL HOLDINGS, INC.
By /s/
--------------------------
Title:
144
1
EXECUTION COPY
EXHIBIT F
ASSIGNMENT AGREEMENT
Reference is made to the Third Amended and Restated Credit Agreement dated
as of March 21, 1996 (as amended prior to the date hereof, the "Credit
Agreement") among GENERAL NUTRITION, INCORPORATED, a Pennsylvania corporation
("GNI"), GENERAL NUTRITION CORPORATION, a Pennsylvania corporation ("GNC"), the
banks and other lenders listed on the signature pages thereof, BANQUE NATIONALE
DE PARIS, NEW YORK BRANCH, as agent for the Lenders hereunder, PNC BANK,
NATIONAL ASSOCIATION, FLEET NATIONAL BANK and THE FUJI BANK, LIMITED, as
co-agents and BANQUE NATIONALE DE PARIS, NEW YORK BRANCH, as swing line bank.
Terms not otherwise defined herein are used herein as defined in the Credit
Agreement.
1. Each of the lenders listed on the signature pages hereof under the
caption "Assignors" (each an "Assignor" and, collectively, the "Assignors")
hereby sells and assigns to the Lenders (each an "Assignee" and, collectively,
the "Assignees") party to the Fourth Amended and Restated Credit Agreement
dated as of March 31, 1997 (the "Restated Credit Agreement") among GENERAL
NUTRITION, INCORPORATED, a Pennsylvania corporation ("GNI"), GENERAL NUTRITION
CORPORATION, a Pennsylvania corporation ("GNC" together with GNI, the
"Borrowers"), GENERAL NUTRITION COMPANIES, INC., a Delaware corporation, the
banks and other lenders (the "Lenders") listed on the signature pages hereof,
BANQUE NATIONALE DE PARIS ("BNP"), as administrative agent (together with any
successor appointed pursuant to Article VII, the "Administrative Agent") and as
documentation agent (the "Documentation Agent"), for the Lenders hereunder, PNC
BANK, NATIONAL ASSOCIATION and ABN AMRO Bank N.V. as syndication agents (the
"Syndication Agents"), THE SUMITOMO BANK, LIMITED, FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, THE FUJI BANK, LIMITED, NEW YORK BRANCH, FLEET NATIONAL BANK
and UNITED STATES NATIONAL BANK OF OREGON, as co-agents (the "Co-Agents," and,
together with the Administrative Agent, the Documentation Agent and the
Syndication Agents, the "Agents"), and BNP, as issuing bank ("Issuing Bank")
and as swing line bank (the "Swing Line Bank"), all of such Assignor's interest
in and rights and obligations under the Credit Agreement as of the Effective
Date (as defined below), including, without limitation, such Assignor's
Revolving Credit Commitments as in effect on the Effective Date
145
2
(each an "Assignment" and, collectively, the "Assignments"). The Administrative
Agent, on behalf of each Assignee, accepts the Assignments in accordance with
the terms set forth in the Restated Credit Agreement.
2. This Assignment Agreement shall become effective as of the date (the
"Effective Date") and time specified in a notice delivered by the Borrowers to
the Administrative Agent in accordance with the Restated Credit Agreement no
later than the day prior to the proposed Effective Date; the Administrative
Agent shall give each Assignor prompt notice of the delivery of such notice by
the Borrowers. No such notice shall specify an Effective Date later than March
31, 1997. In consideration of the Assignments contemplated hereby, each
Assignor shall receive an amount (each, an "Assignment Payment" and,
collectively, the "Assignment Payments") in same day funds equal to the sum of
the aggregate principal amount of all Advances owing to such Assignor on such
date, plus accrued and unpaid commitment fees and interest thereon to such date
at the rates specified pursuant to the Credit Agreement, such payment to be
made as soon as practicable following the initial borrowing under the Restated
Credit Agreement (the "Effective Time"), but in no event later than 12:00 noon
on the day immediately following the Effective Time (the "Payment Deadline").
Each Assignee shall pay an amount equal to its ratable share, determined as set
forth in the Restated Credit Agreement, of the aggregate of the Assignment
Payments. If the aggregate amount of the Assignment Payments has not been
delivered to the Administrative Agent on or prior to the Payment Deadline or if
the Fourth Restatement Date (as defined in the Restated Credit Agreement) does
not occur, then (i) each Assignment shall automatically be revoked without
further action by any party and each Assignor shall have the same interest in
and rights and obligations under the Credit Agreement as existed immediately
prior to the Effective Date, (ii) each Assignor shall return to the
Administrative Agent all Assignment Payments received by such Assignor, and the
Administrative Agent shall return all such payments, together with all other
Assignment Payments received by the Administrative Agent and not paid to the
Assignors, to the Assignees and (iii) this Assignment Agreement shall be of no
further force and effect and each of the parties hereto shall be released from
its obligations and forfeit its rights hereunder (except under this sentence).
In the event that any Assignor's Assignment Payment is not made by 12:00 noon
on the Effective Date, such Assignor shall receive an additional day's interest
and commitment fee for each day until the day on which such payment is made
prior to 2:00 p.m., unless this Assignment Agreement shall have been revoked in
accordance with the preceding sentence.
3. Each Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interests being sold and assigned by it hereunder and
that such interests are free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the Restated Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the Restated Credit Agreement or any other instrument or document
furnished
146
3
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or the
performance or observance by the Borrowers of any of their respective
obligations under the Credit Agreement or the Restated Credit Agreement or any
other instrument or document furnished pursuant thereto.
4. By accepting this Assignment Agreement below, the Administrative Agent
confirms on behalf of each Assignee that such Assignee has received such
financial statements and such other documents and information as such Assignee
has deemed appropriate to make its own credit analysis and decision to enter
into the Restated Credit Agreement and agrees that such Assignee will,
independently and without reliance upon any Assignor and based on such
documents and information as such Assignee shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Restated Credit Agreement.
5. The Borrowers hereby acknowledge that this Assignment Agreement varies
from the form of Assignment and Acceptance prescribed by the Credit Agreement
and waives any objection to such variations. Subject to the payment of all
amounts specified under paragraph 2 above, each Assignor waives any and all
rights to assert that the borrowings and other transactions contemplated by the
Restated Credit Agreement constitute a Default under the Credit Agreement.
6. The Borrowers hereby acknowledge that the Assignors, by performance of
this Assignment Agreement, may incur costs associated with a repayment on a day
other than the last day of an Interest Period. The Borrower hereby agrees to
pay directly to each Assignor, on demand, an amount equal to such costs in
accordance with Section 8.04(c) of the Credit Agreement.
7. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. This Assignment Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart of this Assignment Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Assignment Agreement.
147
IN WITNESS WHEREOF, the Assignors, GNI and GNC have caused this Assignment
Agreement to be executed by their officers thereunto duly authorized.
GENERAL NUTRITION, INCORPORATED,
as Borrower
By
Title:
GENERAL NUTRITION CORPORATION,
as Borrower
By
Title:
By
Title:
BANQUE NATIONALE DE PARIS,
as Administrative Agent
By
Title:
By
Title:
Assignors: BANQUE NATIONALE DE PARIS
By
Title:
By
Title:
148
ABN AMRO BANK N.V.
By
Title:
By
Title:
COMMERZBANK, AG NEW YORK BRANCH
By
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
Title:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By
Title:
FUYO GENERAL LEASE (USA) INC.
By
Title:
000
XXX XXXX XX XXX XXXX
By
Title:
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY
By
Title:
THE SANWA BANK, LIMITED, NEW YORK BRANCH
By
Title:
THE TOYO TRUST AND BANKING CO. LTD.
By
Title:
TOKAI BANK, LIMITED NEW YORK BRANCH
By
Title:
150
FLEET NATIONAL BANK
By
Title:
MELLON BANK, N.A.
By
Title:
MITSUBISHI TRUST & BANKING CORPORATION (U.S.A.)
By
Title:
NATIONAL CITY BANK OF PENNSYLVANIA
By
Title:
PNC BANK, NATIONAL ASSOCIATION
By
Title:
KEYBANK NATIONAL ASSOCIATION
By
Title:
151
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK
BRANCH
By
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By
Title:
THE FUJI BANK, LIMITED, NEW YORK BRANCH
By
Title:
THE SUMITOMO BANK, LIMITED
By
Title:
By
Title:
152
THE YASUDA TRUST AND BANKING CO., LTD., NEW YORK
BRANCH
By
Title:
UNITED STATES NATIONAL BANK OF OREGON
By
Title:
XXXXX FARGO BANK, N.A.
By
Title:
Assignees:
ABN AMRO BANK N.V.
By
Title:
By
Title:
BANQUE NATIONALE DE PARIS
By
Title:
By
Title:
153
PNC BANK, NATIONAL ASSOCIATION
By
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
Title:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By
Title:
FLEET NATIONAL BANK
By
Title:
154
KEYBANK NATIONAL ASSOCIATION
By
Title:
MELLON BANK, N.A.
By
Title:
MITSUBISHI TRUST & BANKING CORPORATION (U.S.A.)
By
Title:
NATIONAL CITY BANK OF PENNSYLVANIA
By
Title:
THE BANK OF NEW YORK
By
Title:
155
THE DAI-ICHI KANGYO BANK, LTD.
By
Title:
THE FUJI BANK, LIMITED, NEW YORK BRANCH
By
Title:
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY
By
Title:
THE SANWA BANK, LIMITED, NEW YORK BRANCH
By
Title:
THE SUMITOMO BANK, LIMITED
By
Title:
By
Title:
156
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK
BRANCH
By
Title:
THE TOYO TRUST AND BANKING CO. LTD.
By
Title:
THE YASUDA TRUST AND BANKING CO., LTD., NEW YORK
BRANCH
By
Title:
UNITED STATES NATIONAL BANK OF OREGON
By
Title:
XXXXX FARGO BANK, N.A.
By
Title:
157
BANQUE PARIBAS
By
Title:
CIBC INC.
By
Title:
NATIONAL AUSTRALIA BANK LIMITED
By
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By
Title:
158
EXHIBIT G TO
THE FOURTH AMENDED
AND RESTATED
CREDIT AGREEMENT
AS SEPARATELY EXECUTED
INTERCOMPANY SUBORDINATION AGREEMENT
Dated as of March 31, 1997
among
GENERAL NUTRITION COMPANIES, INC.
as Subordinated Creditor,
and
GENERAL NUTRITION, INCORPORATED,
as Borrower,
in favor of
BANQUE NATIONALE DE PARIS,
as Administrative Agent
159
EXECUTION COPY
INTERCOMPANY SUBORDINATION AGREEMENT
Dated as of March 31, 1997
among
GENERAL NUTRITION COMPANIES, INC.
as Subordinated Creditor,
and
GENERAL NUTRITION, INCORPORATED,
as Borrower,
in favor of
BANQUE NATIONALE DE PARIS,
as Administrative Agent
160
1
INTERCOMPANY SUBORDINATION AGREEMENT
SUBORDINATION AGREEMENT dated March 31, 1997, made by General Nutrition
Companies, Inc., a Delaware corporation (the "Subordinated Creditor") and
General Nutrition, Incorporated, a Pennsylvania corporation (the "Borrower"),
in favor of Banque Nationale de Paris ("BNP"), as administrative agent
(together with any successor agent appointed pursuant to Article VII of the
Fourth Amended and Restated Credit Agreement referred to below, the
"Administrative Agent") for the Lenders under the Credit Agreements referred to
below.
PRELIMINARY STATEMENTS
(1) The Lenders have entered into (a) a Fourth Amended and Restated Credit
Agreement dated as of March 31, 1997 with the Borrower and BNP, as
administrative agent and as documentation agent, PNC Bank, National Association
and ABN AMRO Bank N.V., as syndication agents (the "Syndication Agents"), The
Sumitomo Bank, Limited, First Union National Bank of North Carolina, The Fuji
Bank, Limited, New York Branch, Fleet National Bank and United States National
Bank of Oregon, as co-agents (the "Co-Agents," and, together with the
Administrative Agent, the Documentation Agent and the Syndication Agents, the
"Agents"), and BNP, as swing line bank (the "Swing Line Bank") and Issuing Bank
(the "Issuing Bank") (said Agreement, as it may hereafter be amended, restated,
supplemented or otherwise modified from time to time, and any agreement
extending the maturity of, refinancing or otherwise restructuring all or any
portion of the Obligations thereunder being the "Credit Agreement", the terms
defined therein and not otherwise defined herein being used herein as therein
defined), and (b) the other Loan Documents and each Hedge Agreement entered
into with the Loan Parties party thereto.
(2) The Borrower is, and may hereafter from time to time become, indebted
or otherwise obligated to the Subordinated Creditor. All Indebtedness and other
Obligations of the Borrower to the Subordinated Creditor now or hereafter
existing (whether created directly or acquired by assignment or otherwise), and
interest and premiums, if any, thereon and other amounts payable in respect
thereof or in connection therewith are hereinafter referred to as the
"Subordinated Debt".
(3) It is a condition precedent to the incurrence of the Subordinated Debt
that the Subordinated Creditor shall have executed and delivered this
Agreement.
NOW, THEREFORE, the Subordinated Creditor and the Borrower each hereby
agrees as follows:
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2
SECTION 1. Agreement to Subordinate. The Subordinated Creditor and the
Borrower each agrees that all of the Subordinated Debt is and shall be
subordinate and junior, to the extent and in the manner hereinafter set forth,
to the prior payment in full of all Senior Obligations (as hereinafter
defined), whether now or hereafter existing. For the purposes of this
Agreement, the Senior Obligations shall not be deemed to have been paid in full
until the latest of (a) the payment in full in cash of all of the Senior
Obligations and the termination or expiration of all of the commitments of the
Senior Creditors and other holders thereof and (b) the expiration or
termination of all of the Hedge Agreements (such latest date being hereinafter
referred to as the "Subordination Termination Date"). Furthermore, for purposes
of this Agreement (A) the term "Senior Obligations" means all Indebtedness and
other Obligations of the Borrower under or in respect of (1) the Credit
Agreement, the Notes, the other Loan Documents, and each Hedge Agreement, in
each case whether for principal, interest (including, without limitation,
interest, as provided in the Notes, that accrues after the filing of a petition
initiating any action or proceeding under the U.S. Bankruptcy Code or any other
bankruptcy, insolvency or similar law or statute protecting creditors in effect
in any jurisdiction, whether or not such interest accrues after the filing of
such petition for purposes of the U.S. Bankruptcy Code or such other law or
statute or is an allowed claim in any such action or proceeding), fees,
premiums, indemnifications, liabilities, expenses or otherwise, and in each
case as amended, supplemented, modified, extended, restated, renewed, refunded
or replaced, in whole or in part, from time to time, and without limitation as
to amount, terms, conditions, covenants and other provisions, and (2) any
instrument or other agreement governing any Indebtedness or other Obligations
incurred to refinance, refund or replace, in whole or in part, any of the
Indebtedness or other Obligations referred to in subclause (1) of this
sentence, together with any related notes, guarantees, collateral documents,
instruments and agreements executed from time to time in connection therewith
and (B) the term "Senior Creditors" means, collectively, the Agents, the
Lenders, the Swing Line Bank, the Issuing Bank and any Lender that has entered
into a Hedge Agreement with any Loan Party.
SECTION 2. Events of Subordination. (a) In the event of any dissolution,
winding up, liquidation, arrangement, reorganization, adjustment, protection,
relief or composition of the Borrower or of its debts, whether voluntary or
involuntary, in any bankruptcy, insolvency, arrangement, reorganization,
receivership, liquidation, winding up, dissolution, relief or other similar
action or proceeding under any bankruptcy, insolvency or similar law or statute
protecting creditors in effect in any jurisdiction, or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Borrower, or any other similar action or proceeding (each, an
"Insolvency Event"), the Senior Creditors shall be entitled to receive payment
in full of the Senior Obligations owed to them before the Subordinated Creditor
shall be entitled to receive any payment of all or any of the Subordinated
Debt, and any payment or distribution of any kind (whether in cash, property or
securities) that otherwise would be payable or deliverable upon or with respect
to the Subordinated Debt in any such Insolvency Event (including any payment
that may be
162
3
payable by reason of any other indebtedness of the Borrower being subordinated
to payment of the Subordinated Debt) shall be paid or delivered directly to the
Administrative Agent for the account of the Senior Creditors until the Senior
Obligations shall have been paid in full.
(b) In the event that (i) any Default shall have occurred and be
continuing or (ii) any judicial proceeding shall be pending with respect to any
such Default, then no payment (including any payment that may be payable by
reason of any other indebtedness of the Borrower being subordinated to payment
of the Subordinated Debt) shall be made by or on behalf of the Borrower for or
on account of any Subordinated Debt, and the Subordinated Creditors shall not
take or receive from the Borrower, directly or indirectly, in cash or other
property or by set-off or in any other manner, including, without limitation,
from or by way of collateral, payment of all or any of the Subordinated Debt.
(c) In the event that any Subordinated Debt is declared due and payable
before its stated maturity, the Senior Creditors shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Obligations before the Subordinated Creditor is entitled to receive any
payment (including any payment which may be payable by reason of the payment of
any other indebtedness of the Borrower being subordinated to the payment of the
Subordinated Debt) by the Borrower on account of the Subordinated Debt. As long
as there is no Default and except as otherwise provided in this Agreement, the
Subordinated Creditor shall be entitled to receive and keep payments in respect
of the Subordinated Debt.
SECTION 3. In Furtherance of Subordination. The Subordinated Creditor
agrees, in furtherance of the rights of the Senior Creditors set forth in
Section 2, that:
(a) If any Insolvency Event is commenced by or against the Borrower:
(i) the Administrative Agent is hereby irrevocably authorized and
empowered (in its own name or in the name of the Subordinated Creditor or
otherwise), but shall have no obligation, to demand, xxx for, collect and
receive every payment or distribution otherwise payable to the
Subordinated Creditor on account of the Subordinated Debt following an
Insolvency Event and give acquittance therefor, and to file claims and
proofs of claim and take such other action (including, without limitation,
voting the Subordinated Debt or enforcing any security interest or other
lien securing payment of the Subordinated Debt) as it may deem necessary
or advisable for the exercise or enforcement of any of the rights or
interests of any of the Senior Creditors under this Agreement; and
(ii) the Subordinated Creditor shall duly and promptly take such
action as the Administrative Agent may from time to time reasonably
request
163
4
(A) to collect the Subordinated Debt for the account of the Senior
Creditors and to file appropriate claims or proofs or claim in respect of
the Subordinated Debt, (B) to execute and deliver to the Administrative
Agent such powers of attorney, assignments, or other instruments as the
Administrative Agent may reasonably request in order to enable the
Administrative Agent to enforce any and all claims with respect to, and
any security interests and other liens securing payment of, the
Subordinated Debt and (C) to collect and receive any and all payments or
distributions which may be payable or deliverable upon or with respect to
the Subordinated Debt.
(b) All payments or distributions upon or with respect to the Subordinated
Debt which are received by the Subordinated Creditor contrary to the provisions
of this Agreement shall be received in trust for the benefit of the Senior
Creditors, shall be segregated from other funds and property of the
Subordinated Creditor and shall be forthwith paid over to the Administrative
Agent in the same form as so received (with any necessary indorsement) for the
account of the Senior Creditors (or the successors thereto) for application (in
the case of cash) to, or as collateral (in the case of noncash property or
securities) for, the payment or prepayment of the Senior Obligations owed to
the applicable Senior Creditors until such Senior Obligations shall have been
paid in full.
(c) To the extent that any of the Subordinated Creditor, the Borrower or
any of its Subsidiaries or any other guarantor of or provider of collateral for
the Senior Obligations makes any payment on the Senior Obligations that is
subsequently invalidated, declared to be fraudulent or preferential or set
aside or is required to be repaid to a trustee, receiver or any other party
under any bankruptcy, insolvency or reorganization act, state or federal law,
common law or equitable cause (such payment being hereinafter referred to as a
"Voided Payment"), then to the extent of such Voided Payment, that portion of
the Senior Obligations that had been previously satisfied by such Voided
Payment shall be revived and continue in full force and effect as if such
Voided Payment had never been made. To the extent that the Subordinated
Creditor shall have received any payments subsequent to the date of the Senior
Creditors' initial receipt of such Voided Payment and such payments have not
been invalidated, declared to be fraudulent or preferential or set aside or are
required to be repaid to a trustee, receiver, or any other party under any
bankruptcy act, state or federal law, common law or equitable cause, the
Subordinated Creditor shall be obligated and hereby agrees that any such
payment so made or received shall be deemed to have been received in trust for
the benefit of the Senior Creditors, and the Subordinated Creditor hereby
agrees to pay to the Administrative Agent, upon demand, the full amount so
received by the Subordinated Creditor during such period of time to the extent
necessary fully to restore to the Senior Creditors the amount of such Voided
Payment to be applied as set forth in Section 3(b).
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(d) The Administrative Agent is hereby authorized to demand specific
performance of this Agreement, whether or not the Borrower shall have complied
with any of the provisions hereof applicable to it, at any time when the
Subordinated Creditor shall have failed to comply with any of the provisions of
this Agreement applicable to it. The Subordinated Creditor hereby irrevocably
waives any defense based on the adequacy of a remedy at law which might be
asserted as a bar to the remedy of specific performance set forth in this
Section 3(d).
(e) The Subordinated Creditor shall not have or claim any Lien in or on
any property or assets of the Borrower, whether now or hereafter existing,
except in furtherance of the execution or levy upon any judgment which the
Subordinated Creditor is permitted to obtain hereunder and, in all such cases,
subject to the provisions of this Agreement.
(f) The Subordinated Creditor hereby agrees, with respect to the Senior
Obligations and any and all of the collateral therefor, that the Borrower and
the Senior Creditors may agree to amend, waive, supplement or otherwise modify
the terms or conditions of any of the Senior Obligations, and the Senior
Creditors (or any portion of them) may grant extensions of the time of payment
or performance of and make compromises in respect of, any or all of the Senior
Obligations (including, without limitation, releases of collateral of, and
settlements with, the Borrower, any of the other Loan Parties or any of the
other guarantors, sureties or providers of collateral security for the Senior
Obligations) and the agreements, instruments and other documents related
thereto, in each case without the consent of the Subordinated Creditor and
without affecting any of the agreements or obligations of the Subordinated
Creditor or the Borrower contained in this Agreement. Without the necessity of
any reservation of rights against or any notice to or assent by the
Subordinated Creditor, any demand for payment of any of the Senior Obligations
may be rescinded, in whole or in part, and any of the Senior Obligations may be
continued or extended, and the Senior Creditors may exercise or refrain from
exercising any rights and remedies against the Borrower or any other Loan Party
and the collateral therefor, all without impairing, abridging, releasing or
affecting the subordination provisions or any of the other agreements or
obligations of the Subordinated Creditor or the Borrower contained in this
Agreement. Nothing in this Agreement shall be construed to create or impose
upon the Administrative Agent or any of the other Senior Creditors any
fiduciary duty to the Subordinated Creditor or any other implied obligation to
act or refrain from acting with respect to the Borrower, any of the other Loan
Parties or the collateral therefor, or with respect to any of the Senior
Obligations in any manner that is contrary to what the Administrative Agent and
the Senior Creditors may determine from time to time is in its or their own
interests.
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SECTION 4. No Commencement of Any Proceeding. (a) The Subordinated
Creditor agrees that, so long as the Subordination Termination Date shall not
have occurred, the Subordinated Creditor will not xxx for, nor, so long as any
Default has occurred and is continuing, take, ask or demand from the Borrower,
payment of all or any of the Subordinated Debt, or commence, or join with any
creditor other than the Administrative Agent and the other Senior Creditors in
commencing, or directly or indirectly cause the Borrower to commence, or assist
the Borrower in commencing, any Insolvency Event.
(b) If the Subordinated Creditor, in contravention of this Agreement,
shall commence, prosecute or participate in any of the proceedings mentioned in
Section 4(a), then the Administrative Agent may intervene and interpose as a
defense or plea the making of this Agreement in its name or the name of the
Borrower.
SECTION 5. Rights of Subrogation. The Subordinated Creditor hereby
unconditionally and irrevocably agrees that no payment or distribution to the
Administrative Agent, on behalf of itself or any of the other Senior Creditors,
pursuant to the provisions of this Agreement shall entitle the Subordinated
Creditor to exercise any right of subrogation in respect thereof, nor shall the
Subordinated Creditor have any right of reimbursement, restitution,
exoneration, contribution or indemnification whatsoever from any property or
assets of the Borrower, any of the other Loan Parties or any of the other
guarantors, sureties or providers of collateral security for the Senior
Obligations, or any right to participate in any claim or remedy of the
Administrative Agent or any of the other Senior Creditors against the Borrower
or any of the collateral for the Senior Obligations, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law
(including, without limitation, the right to take or receive from the Borrower,
directly or indirectly, in cash or other property and assets or by set off or
in any other manner, payment or security on account of such claim, remedy or
right), until the Subordination Termination Date. If any amount shall be paid
to the Subordinated Creditor in violation of the immediately preceding sentence
at any time prior to the Subordination Termination Date, such amount shall be
held in trust for the benefit of the Administrative Agent and the other Senior
Creditors, shall be segregated from all other property and funds of the
Subordinated Creditor and shall forthwith be paid to the Administrative Agent
for the account of the Senior Creditors in the same form as so received (with
any necessary indorsement) for the account of the Senior Creditors (or the
successors thereto) for application (in the case of cash) to, or as collateral
(in the case of noncash property or securities) for, the payment or prepayment
of the Senior Obligations owed to the applicable Senior Creditors until such
Senior Obligations shall have been paid in full.
SECTION 6. Subordination Legend; Further Assurances. The Subordinated
Creditor and the Borrower will cause each instrument evidencing Subordinated
Debt to be endorsed with the following legend:
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"THE DEBT EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED PURSUANT TO,
AND TO THE EXTENT PROVIDED IN, THE INTERCOMPANY SUBORDINATION AGREEMENT
DATED MARCH 31, 1997 BY THE MAKER HEREOF AND PAYEE NAMED HEREIN IN FAVOR
OF THE ADMINISTRATIVE AGENT AND THE OTHER SENIOR CREDITORS REFERRED TO
THEREIN."
If any of the Subordinated Debt is not evidenced by an instrument, the
Subordinated Creditor and the Borrower each will xxxx its books of account in
such a manner as shall be effective to give proper notice of the effect of this
Agreement and will, in the case of any Subordinated Debt which is not evidenced
by any instrument, upon the Administrative Agent's request, promptly cause such
Subordinated Debt to be evidenced by an appropriate instrument or instruments
endorsed with the legend set forth above. The Subordinated Creditor and the
Borrower each will, at its expense and at any time and from time to time,
promptly execute and deliver all further instruments and documents, and take
all further action, that may be necessary or desirable, or that the
Administrative Agent may reasonably request, in order to protect any right or
interest granted or purported to be granted under this Agreement or to enable
the Administrative Agent or any of the other Senior Creditors to exercise and
enforce its rights and remedies hereunder.
SECTION 7. Agreements in Respect of Subordinated Debt, Etc. (a) The
Subordinated Creditor will not:
(i) Sell, assign, pledge, encumber or otherwise dispose of any of the
Subordinated Debt unless such sale, assignment, pledge, encumbrance or
disposition (A) is to a Person other than the Borrower or any of its
Affiliates and (B) is made expressly subject to the terms of this Agreement;
or
(ii) Permit the terms of any of the Subordinated Debt to be amended,
waived, supplemented or other modified in such a manner as could reasonably
be expected to have a material adverse effect upon the rights or interests
of the Administrative Agent or any of the other Senior Creditors under this
Agreement or any of the Loan Documents.
(b) The Subordinated Creditor shall promptly notify the Administrative
Agent of the occurrence of any default under the Subordinated Debt.
SECTION 8. Agreement by the Borrower. The Borrower agrees that it will not
make any payment of any of the Subordinated Debt, or take any other action, in
contravention of the provisions of this Agreement.
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SECTION 9. Senior Obligations Hereunder Not Affected. All rights and
interests of the Administrative Agent and the Senior Creditors hereunder, and
all agreements and other Obligations of the Subordinated Creditor and the
Borrower under this Agreement, shall remain in full force and effect
irrespective of, and the Subordinated Creditor hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any or all of the
following:
(a) any lack of validity or enforceability of the Credit Agreement or any
of the other Loan Documents, any of the other agreements or instruments
relating to any of the Senior Obligations, or any other agreement or
instrument relating to any of the foregoing;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Senior Obligations, or any other amendment or
waiver of or any consent to any departure from the Credit Agreement or any
of the other Loan Documents, any of the other agreements or instruments
relating to any of the Senior Obligations, including, without limitation,
any increase in the Senior Obligations resulting from the extension of
additional credit to the Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or nonperfection of any collateral for
the Senior Obligations, or any taking, release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the Senior
Obligations;
(d) any manner of application of any collateral for the Senior
Obligations, or proceeds thereof, to all or any of the Senior Obligations,
or any manner of sale or other disposition of any collateral for the Senior
Obligations or any other assets of the Borrower or any of its Affiliates;
(e) any change, restructuring or termination of the corporate structure or
existence of the Borrower or any of its Affiliates; or
(f) any other circumstance (including, without limitation, any statute of
limitations or the existence of or reliance upon any representation by the
Administrative Agent or any of the other Senior Creditors) that might
otherwise constitute a defense available to, or a discharge of, the Borrower
or a subordinated creditor.
SECTION 10. Waivers and Acknowledgments. (a) The Subordinated Creditor and
the Borrower each hereby unconditionally and irrevocably waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Senior Obligations and this Agreement; and any requirement that the
Administrative Agent or any of
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the Senior Creditors protect, secure, perfect or insure any Lien or any
property or assets subject thereto or exhaust any right or take any action
against the Borrower or any other Person or any collateral or any other
collateral for the Senior Obligations.
(b) The Subordinated Creditor and the Borrower each hereby unconditionally
and irrevocably waives any duty on the part of the Administrative Agent or any
of the other Senior Creditors to disclose to the Subordinated Creditor any
matter, fact or thing relating to the business, condition, operations,
properties or prospects of the Borrower or any of its Subsidiaries now or
hereafter known by the Administrative Agent or such other Senior Creditor.
(c) The Subordinated Creditor and the Borrower each hereby unconditionally
waives any right to revoke this Agreement, and acknowledges that this Agreement
is continuing in nature at all times on or prior to the Subordination
Termination Date and applies to all of the Subordinated Debt and all of the
agreements and other Obligations of the Subordinated Creditor under this
Agreement, whether existing now or in the future.
(d) The Subordinated Creditor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and the other agreements or instruments
relating to any of the Senior Obligations, and that the waivers set forth in
Section 9 and in this Section 10 are knowingly made in contemplation of such
benefits.
SECTION 11. Representations and Warranties. The Subordinated Creditor and
the Borrower each hereby represent and warrant as follows:
(a) The Subordinated Debt now outstanding, true and complete copies of
instruments evidencing which have been furnished to the Administrative
Agent, has been duly authorized, issued and delivered by the Borrower, has
not been amended or otherwise modified except as set forth in Preliminary
Statement (3) of this Agreement, and constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms. There exists no default in respect of any such
Subordinated Debt.
(b) The Subordinated Creditor is the legal and beneficial owner of the
Subordinated Debt now outstanding, free and clear of any Lien.
(c) There are no conditions precedent to the effectiveness of this
Agreement that have not been satisfied or waived.
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(d) The Subordinated Creditor has, independently and without reliance upon
the Administrative Agent or any of the other Senior Creditors and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement.
SECTION 12. Amendments, Waivers, Etc. (a) No amendment or waiver of any
provision of this Agreement, and no consent to any departure by the
Subordinated Creditor or the Borrower herefrom, shall in any event be effective
unless the same shall be in writing and signed by the Administrative Agent and
the Required Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
(b) The Subordinated Creditor hereby agrees that no failure on the part of
the Administrative Agent or any of the other Senior Creditors to exercise, and
no delay in exercising, any right, power or privilege hereunder shall operate
as a waiver thereof or a consent thereto; nor shall any single or partial
exercise of any such right, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
Subordinated Creditor hereby agrees that the remedies herein provided are
cumulative and not exclusive of any remedy provided by applicable law.
SECTION 13. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered
by an overnight courier of recognized standing, if to the Subordinated
Creditor, at each of the addresses listed below each such Subordinated
Creditor's name on the signature pages hereof; if to the Borrower, the Agents
or any Lender, at its address specified in Section 8.02 of the Credit
Agreement; or as to each party, at such other address as shall be designated by
such party in a written notice to each other party. All such notices and other
communications shall, when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier, confirmed by telex answerback or delivered
by overnight courier, be effective when deposited in the mails, delivered to
the telegraph company, telecopied, confirmed by telex answerback or delivered
to the overnight courier, respectively.
SECTION 14. Expenses. The Subordinated Creditor and the Borrower jointly
and severally agree to pay to the Administrative Agent, upon demand, any and
all costs and expenses, including the reasonable fees and expenses of its
counsel and of any experts or agents, which the Administrative Agent or any or
any of the other Senior Creditors may incur in connection with the (a) the
administration of this Agreement, (b) the exercise or enforcement of any of the
rights of the Administrative Agent or the Senior Creditors hereunder or (c) the
failure by the Subordinated Creditor or the Borrower to perform or observe any
of the terms or provisions of this Agreement.
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SECTION 15. Continuing Agreement; Assignments Under the Credit Agreement.
This Agreement is a continuing agreement and shall (a) remain in full force and
effect until the Subordination Termination Date, (b) be binding upon the
Subordinated Creditor, the Borrower and their respective successors and
assigns, and (c) inure to the benefit of, and be enforceable by, the
Administrative Agent, the Senior Creditors and their respective successors,
transferees and assigns. Without limiting the generality of the clause (c) of
the immediately preceding sentence, any of the Lenders may assign or otherwise
transfer all or any portion of its rights and obligations under the Credit
Agreement (including, without limitation, all or any portion of its Commitment,
the Advances and any Note to be held by it) to any other Person, and such other
Person shall thereupon become vested with all the rights in respect thereof
granted to such Lender Party herein or otherwise, in each case as provided in
section 8.07 of the Credit Agreement.
SECTION 16. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 17. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 18. Severability. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, the validity, legality and enforceability
of the remaining provisions of this Agreement shall not in any way be affected
or impaired thereby.
IN WITNESS WHEREOF, the Subordinated Creditor and the Borrower each has
caused this Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
GENERAL NUTRITION COMPANIES, INC.
By /s/
--------------------------
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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GENERAL NUTRITION, INCORPORATED
By /s/
--------------------------
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
