EXHIBIT 4.6
FIFTH AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This FIFTH AMENDMENT dated as of December 15, 1998 and effective as of
November 30, 1998 (this "AGREEMENT") is made among WEIDER NUTRITION
INTERNATIONAL, INC., a Delaware corporation ("HOLDINGS"), WEIDER NUTRITION
GROUP, INC., a Utah corporation ("NUTRITION"), WNG HOLDINGS (INTERNATIONAL)
LTD., a Nevada corporation ("INTERNATIONAL"; Holdings, Nutrition and
International, individually, each an "OBLIGOR" and, collectively, "OBLIGORS"),
in favor of GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation, for
itself, as Lender, and as Agent for Lenders (in such capacity, "AGENT"), and the
other Lenders signatory to the hereinafter defined Credit Agreement.
RECITALS
A. Agent, Lenders and Obligors are party to that certain Third Amended and
Restated Credit Agreement dated May 6, 1997 (as amended, restated, supplemented
or otherwise modified from time to time, the "CREDIT AGREEMENT").
B. On and subject to the terms and conditions hereof, Obligors have
requested from Agent and Lenders, and Agent and Lenders are willing to grant,
amendments to certain provisions of the Credit Agreement to change certain
financial covenants, revise certain interest and fee provisions and make other
changes mutually agreeable to Agent, Lenders and Obligors.
C. This Agreement shall constitute a Loan Document and these Recitals
shall be construed as part of this Agreement; capitalized terms used herein
without definition are so used as defined in Annex A to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. AMENDMENTS. Subject to the conditions and effectiveness of this
Agreement:
(a) The Credit Agreement is hereby amended by deleting the pricing
grid contained in Section 1.5(a) and replacing it with the following
pricing grid:
RATIO OF FUNDED REVOLVING CREDIT LOAN
DEBT TO EBITDA LIBOR MARGIN INDEX MARGIN
--------------- ------------ ---------------------
less than or equal to 3.75 3.25 1.75
less than or equal to 3.00 but < 3.75 3.00 1.50
less than or equal to 2.50 but < 3.00 2.50 1.00
less than or equal to 2.00 but < 2.50 2.25 0.75
less than or equal to 1.50 but < 2.00 1.75 0.25
< 1.5 1.50 0.00
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(b) The Credit Agreement is hereby amended by deleting the third
sentence of Section 1.5(a) in its entirety and replacing it with the
following sentence:
"Thereafter, determinations of each Margin will be based on a
calculation of the ratio of Funded Debt to EBITDA, in each case for
the twelve month period then ended."
(c) The Credit Agreement is hereby amended by deleting the fourth
sentence of Section 1.5(e) in its entirety and replacing it with the
following sentence:
"Holdings, on behalf of Borrowers, shall have the option to (1)
convert at any time all or any portion of the Revolving Credit Loan
bearing interest at a rate determined by reference to one basis to a
rate determined by reference to an alternate basis or (2) upon the
expiration of any LIBOR Period applicable to a LIBOR Loan, to
continue all or any portion of the Revolving Credit Loan as a LIBOR
Loan and the succeeding Period(s) of such continued portion of the
Revolving Credit Loan shall commence on the last day of the LIBOR
Period of the portion of the Revolving Credit Loan to be continued;
PROVIDED that (A) except as permitted in clause (B) below, any
Revolving Credit Loan to be continued as, or converted into, a LIBOR
Loan must be in a minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of such amount, (B) the aggregate
amount of all Revolving Credit Loans to be made or continued as, or
converted into, LIBOR Loans commencing on the same date and having
the same LIBOR Period may be in a minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount, (C) LIBOR
Loans may only be converted into Index Rate Loans on the expiration
date of a LIBOR Period applicable thereto and (D) no portion of the
Revolving Credit Loan may be continued as, or be converted into, a
LIBOR Loan when any Event of Default or Default has occurred and is
continuing."
(d) The Credit Agreement is hereby amended by deleting Section 1.6
thereof in its entirety and replacing it with the following new Section
1.6:
" 1.6 FEES. As additional compensation for Lenders' costs and risks
in making the Revolving Credit Loan available to Borrowers,
Borrowers agree to pay to Agent, for the ratable benefit of Lenders,
in arrears, on the first Business Day of each month prior to the
Revolving Commitment Termination Date or such earlier date as the
Lenders' obligations to make Revolving Credit Advances terminate or
the Revolving Credit Loan becomes due and payable, and on the
Revolving Commitment Termination Date or such earlier date as the
Lenders' obligations to make Revolving Credit Advances terminate or
the Revolving Credit Loan becomes due and payable, a fee for
Borrowers' non-use of available funds (the "NON-USE FEE") in an
amount equal to (i) the applicable rate per annum (calculated on the
basis of a 360 day year and actual days elapsed) set forth in the
following grid (the "NON-USE FEE MARGIN") multiplied by (ii) the
difference between the respective daily averages of (A) the Maximum
Revolving Credit Loan (as it may be adjusted from time to time
hereunder)
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and (B) the amount of the Revolving Credit Loan outstanding during
the period for which the Non-Use Fee is due:
Ratio of Funded Non-use
DEBT TO EBITDA FEE MARGIN
> 2.0 0.375
< 2.0 0.250
The effective Non-Use Fee Margin shall be based on the ratio of
Funded Debt to EBITDA, in each case for the twelve month period then
ended, and shall be determined and adjusted in a manner identical to
that in which the effective Margin with respect to the Revolving
Credit Loan is determined and adjusted pursuant to SECTION 1.5 of
the Agreement."
(e) The Credit Agreement is hereby amended by deleting Section 6.2
thereof in its entirety and replacing it with the following revised
Section 6.2:
" 6.2 INVESTMENTS; LOANS AND ADVANCES. Except (I) as otherwise
permitted by SECTION 6.1, 6.3, 6.4, or 6.21 and (II) for advances to
suppliers on an arm's length basis in connection with purchases in
the ordinary course of business, no Obligor shall, or shall cause or
permit any Subsidiary thereof to, make any investment in, or make or
accrue loans or advances of money to any Person, through the direct
or indirect lending of money (including, without limitation, the
guarantee of any letters of credit issued for the benefit of such
Person), holding of securities or otherwise, other than (a)
Accounts, (b) investments in Obligors which are Subsidiaries of
Holdings, (c) investments in (i) marketable direct obligations
issued or unconditionally guaranteed by the United States of America
or any agency thereof maturing within one year from the date of
acquisition thereof, (ii) commercial paper maturing no more than one
year from the date of creation thereof and currently having the
highest rating obtainable from either Standard & Poor's Corporation
or Xxxxx'x Investors Service, Inc., (iii) certificates of deposit,
maturing no more than one year from the date of creation thereof,
issued by commercial banks incorporated under the laws of the United
States of America, each having combined capital, surplus and
undivided profits of not less than $300,000,000 and having a senior
secured rating of "A" or better by a nationally recognized rating
agency, provided that the aggregate amount invested in such
certificates of deposit shall not at any time exceed $100,000 for
any one such certificate of deposit and $200,000 for any one such
bank, (iv) time deposits, maturing no more than 30 days from the
date of creation thereof with commercial banks or savings banks or
savings and loan associations each having membership either in the
Federal Deposit Insurance Corporation or in the Federal Savings and
Loan Insurance Corporation and in amounts not exceeding the maximum
amounts of insurance thereunder, (v) money market funds and (vi) in
accordance with paragraph (d) of ANNEX C, (d) from and after receipt
by Agent of documentation in form and substance acceptable to Agent
evidencing (i) the obligation of one or more
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financial institutions reasonably acceptable to Agent to extend
credit of at least DM10,000,000 but not more than DM20,000,000 to
Haleko (in excess of Indebtedness of Haleko outstanding as of
November 30, 1998, as indicated on the most recent balance sheet
delivered pursuant to Annex G which includes such date) and (ii) the
drawing of at least DM10,000,000 of funds thereunder (an "ACCEPTABLE
HALEKO CREDIT FUNDING"), contributions by Obligors to the capital of
Haleko that shall not at any time exceed $3,000,000 in aggregate at
any time outstanding and (e) any other type of investment (including
the acquisition by Holdings, during the period from June 26, 1998
through September 1, 1998, of the Specified Margin Shares), loan or
advance not exceeding $5,000,000 in the aggregate at any time
outstanding; provided that (i) each such investment in 5% or more of
the ownership interests of any Person (other than the acquisition by
Holdings, during the period from June 26, 1998 through September 1,
1998, of the Specified Margin Shares) shall have been approved by
the board of directors of such Person and shall otherwise be
consensual and (ii) any such investment which is otherwise a
transaction described in SECTION 6.1 shall be subject to the
provisions of SECTION 6.1 (it being understood that nothing herein
shall be deemed to permit the disposition of any Stock constituting
Collateral except in accordance with the express terms of this
Agreement and the other Loan Documents)."
(f) The Credit Agreement is hereby amended by deleting Section 6.3
thereof in its entirety and replacing it with the following revised
Section 6.3:
" 6.3 INDEBTEDNESS. No Obligor shall, or shall cause or permit any
Subsidiary thereof to, create, incur, assume or permit to exist any
Indebtedness, except (i) obligations of Borrowers or Subsidiaries
thereof in connection with Letter of Credit Obligations, (ii)
Indebtedness secured by Liens permitted under SECTION 6.7, (iii) the
Revolving Credit Loan and the other Obligations, (iv) deferred
taxes, (v) unfunded pension fund and other employee benefit plan
obligations and liabilities to the extent they are permitted to
remain unfunded under applicable law, (vi) existing Indebtedness set
forth on SCHEDULE 6.3 and refinancings thereof on terms and
conditions acceptable to Agent, in its reasonable discretion,
determined in a timely manner, which shall in any event be on terms
no less favorable to Agent, any Lender and the applicable Obligors,
(vii) obligations under or in connection with foreign exchange
forward purchase agreements for purposes of hedging Inventory
purchases, (viii) lease payment obligations under leases which an
Obligor or Subsidiary thereof is permitted to enter into under the
Loan Documents, (ix) Indebtedness of Haleko which shall not exceed
the amount of the Indebtedness of Haleko outstanding on November 30,
1998 (as indicated on the most recent balance sheet delivered
pursuant to Annex G which includes such date) by DM20,000,000 in the
aggregate from time to time outstanding, (x) other unsecured
Indebtedness which, when taken together with (a) all Guaranteed
Indebtedness described in clause (iv) of SECTION 6.6 and (b) all
Indebtedness secured by Liens described in clause (v) of SECTION
6.7, does not exceed $1,000,000 in principal amount in the aggregate
outstanding at any one time,
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(xi) unsecured Indebtedness not exceeding $3,000,000 in the
aggregate at any time outstanding assumed in connection with
Permitted Acquisitions and subordinated in right of payment to the
Obligations on terms and conditions satisfactory to Agent and (xii)
intercompany loans made in accordance with SECTION 6.21."
(g) The Credit Agreement is hereby amended by adding the following
to the end of Section 6.11:
" and (e) the aggregate fair market value of the assets subject to
Sale-Leaseback Transactions does not exceed $1,000,000."
(h) The Credit Agreement is hereby amended by replacing subclauses
(B), (C) and (D) of clause (iii) of Section 6.13 thereof with the
following text:
"(B) all such Restricted Payments made during any Fiscal Quarter
shall be made during the fifteenth (15th) through the twentieth
(20th) (except, the fortieth (40) day, in the case of such a
Restricted Payment made during the third Fiscal Quarter of Fiscal
Year 1999) consecutive day immediately following the end of the
immediately preceding Fiscal Quarter, (C) at least five (5) days
prior to such Restricted Payment (except, one (1) day, in the case
of such a Restricted Payment made during the third Fiscal Quarter of
Fiscal Year 1999), Agent shall have received preliminary versions of
the Financial Statements to be delivered to Agent pursuant to ANNEX
E for the immediately preceding Fiscal Quarter, together with an
attached certificate of the Chief Financial Officer of Holdings (on
behalf of itself and each Borrower) to the effect that (1) the final
Financial Statements to be delivered to Agent for such immediately
preceding Fiscal Quarter will not differ in any material respect
from such preliminary Financial Statements and (2) no Default or
Event of Default had occurred or been continuing as of the end of
the period covered by such Financial Statements (other than as of
the end of the second Fiscal Quarter of Fiscal Year 1999), has
occurred or is continuing as of the date of such certificate or
would result from the making of such Restricted Payment, (D) the
aggregate amount of all such Restricted Payments made during (1)
each of the first and second Fiscal Quarter of Fiscal Year 1998
shall not exceed $0.0375 per each share of Holdings' common stock,
(2) each of the third and fourth Fiscal Quarters of Fiscal Year 1999
shall not exceed $0.0375 per each share of Holdings' common stock
and (3) each other Fiscal Quarter shall not exceed the lesser of (I)
$0.0625 per each share of Holdings' common stock and (II) the
product of 7.5% of the sum of (x) the actual consolidated Net Income
of Holdings for that portion of the then-current Fiscal Year ending
as of the close of such immediately preceding Fiscal Quarter, based
on the Financial Statements described in clause (C) above for such
period (except, as received, based on Financial Statements delivered
pursuant to ANNEX E for any portion of such period) plus (y) the
projected consolidated Net Income of Holdings for the remaining
portion of such Fiscal Year, based on the Projections delivered to
Agent pursuant to ANNEX E for such period and"
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(i) The Credit Agreement is hereby amended by deleting the first and
second sentences of Section 9.9(a)(i) in their entirety and replacing them
with the following:
"By 1:00 p.m. (New York time) on the date of Agent's receipt of a
Notice of Revolving Credit Advance or, at Agent's option, on any
succeeding day on or prior to the next Settlement Date (as defined
below) following the date of Agent's receipt of such notice, Agent
shall notify Revolving Credit Lenders thereof by telecopy, telephone
or other similar form of transmission. Each Lender shall make the
amount of such Lender's Pro Rata Share of each Revolving Credit
Advance available to Agent in same day funds by wire transfer to
Agent's account as set forth in ANNEX H, not later than 2:30 p.m.
(New York time) on the funding date requested by Agent, in the case
of an Index Rate Loan, and not later than 11:00 a.m. (New York time)
on the funding date requested by Agent, in the case of a LIBOR
Loan."
(j) The Credit Agreement is hereby amended by deleting the first
sentence of Section 9.9(b) in its entirety and replacing it with the
following:
"Agent may assume that each Lender will make its Pro Rata Share of
each Revolving Credit Advance available to Agent on the funding date
requested by Agent."
(k) The following definitions are hereby inserted in appropriate
alphabetic order into Annex A to the Credit Agreement:
""ACCEPTABLE HALEKO CREDIT FUNDING" has the meaning assigned
in SECTION 6.2.
"DEUTCHMARK" or "DM" shall mean the lawful currency of
Germany; PROVIDED, that each amount so denominated will be converted
and redenominated into any successor currency upon common use and
acceptance of such currency.
"HALEKO" shall mean Haleko Hanseatisches Lebensmittelkontor
GmbH, a corporation organized under the laws of Germany."
(l) The last sentence of subclause (1) of paragraph (d) of Annex B
of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
"The effective L/C Margin will be based on the ratio of Funded Debt
to EBITDA, in each case for the twelve month period then ended, and
shall be determined and adjusted in a manner identical to that in
which the effective Margin with respect to the Revolving Credit Loan
is determined and adjusted pursuant to SECTION 1.5 of the Agreement;
and"
(m) Clause (a) and clause (b) of Annex E of the Credit Agreement are
hereby amended by inserting after each reference to "on a consolidated and
consolidating basis" the
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text "(which consolidating portion shall separately reflect the
appropriate information for each operating entity)."
(n) Annex E of the Credit Agreement is hereby amended by appending
the following section to the end of such Annex E:
" (i) To Agent and Lenders, accompanying each set of financial
information delivered pursuant to CLAUSE (B) hereof, (i) a
comparison of the actual financial results included in such
quarterly report to the budget and projections for the applicable
Fiscal Quarter and (ii) a management discussion and analysis
discussing actual performance for such Fiscal Quarter relative to
the budget and projections for such Fiscal Quarter."
(o) The Credit Agreement is hereby amended to change the maximum
Capital Expenditure allowed in paragraph (a) of Annex G in Fiscal Year
1999 from $11,000,000 to $13,000,000.
(p) Annex G of the Credit Agreement is hereby amended to delete
paragraph (c) of Annex G in its entirety and to replace it with the
following:
" (c) MINIMUM INTEREST COVERAGE RATIO. Holdings, on a consolidated
basis, shall have at the end of each Fiscal Quarter described below
a ratio of (i) the sum of (A) EBITDA LESS (B) Capital Expenditures
LESS (C) taxes paid in cash PLUS (D) for the period from September
1, 1998 through August 31, 1999, $4,000,000 PLUS (E) for the period
from December 1, 1998 through November 30, 1999, $1,000,000 to (ii)
Gross Interest Charges, in each case for the twelve month period
then ended, equal or greater to the ratio set forth opposite such
Fiscal Quarter:
(I) if an Acceptable Haleko Credit Funding has not
occurred:
FISCAL QUARTER RATIO
Fiscal Quarter ending November 30, 1998 1.00 to 1.00
Fiscal Quarter ending February 28, 1999 1.10 to 1.00
Fiscal Quarter ending May 31, 1999 1.40 to 1.00
Fiscal Quarter ending August 31, 1999 1.70 to 1.00
Fiscal Quarter ending November 30, 1999 2.40 to 1.00
Fiscal Quarter ending February 29, 2000 2.40 to 1.00
and each Fiscal Quarter thereafter; or
(II) if an Acceptable Haleko Credit Funding has occurred:
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FISCAL QUARTER RATIO
Fiscal Quarter ending November 30, 1998 1.00 to 1.00
Fiscal Quarter ending February 28, 1999 1.10 to 1.00
Fiscal Quarter ending May 31, 1999 1.35 to 1.00
Fiscal Quarter ending August 31, 1999 1.65 to 1.00
Fiscal Quarter ending November 30, 1999 2.35 to 1.00
Fiscal Quarter ending February 29, 2000 2.40 to 1.00
and each Fiscal Quarter thereafter."
(q) Annex G of the Credit Agreement is hereby amended to delete
paragraph (d) of Annex G in its entirety and to replace it with the
following:
" (d) MAXIMUM FUNDED DEBT TO EBITDA RATIO. Holdings, on a
consolidated basis, shall have at the end of each Fiscal Quarter
described below a ratio of (i) Funded Debt to (ii) the sum of (A)
EBITDA PLUS (B) for the period from September 1, 1998 through August
31, 1999, $4,000,000 PLUS (C) for the period from December 1, 1998
through November 30, 1999, $1,000,000, where EBITDA and Funded Debt
shall be determined for the twelve month period then ended, less
than or equal to the ratio set forth opposite such Fiscal Quarter:
(I) if an Acceptable Haleko Credit Funding has not occurred:
FISCAL QUARTER RATIO
Fiscal Quarter ending November 30, 1998 4.20 to 1.00
Fiscal Quarter ending February 28, 1999 4.10 to 1.00
Fiscal Quarter ending May 31, 1999 3.90 to 1.00
Fiscal Quarter ending August 31, 1999 3.60 to 1.00
Fiscal Quarter ending November 30, 1999 3.00 to 1.00
Fiscal Quarter ending February 29, 2000 2.80 to 1.00
and each Fiscal Quarter thereafter; or
(II) if an Acceptable Haleko Credit Funding has occurred:
FISCAL QUARTER RATIO
Fiscal Quarter ending November 30, 1998 4.50 to 1.00
Fiscal Quarter ending February 28, 1999 4.30 to 1.00
Fiscal Quarter ending May 31, 1999 4.20 to 1.00
Fiscal Quarter ending August 31, 1999 3.75 to 1.00
Fiscal Quarter ending November 30, 1999 3.10 to 1.00
Fiscal Quarter ending February 29, 2000 2.80 to 1.00
and each Fiscal Quarter thereafter."
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2. REPRESENTATIONS AND WARRANTIES.
(a) As of the date of this Agreement and, after giving effect to
this Agreement, the transactions contemplated hereby (i) no Default or
Event of Default shall have occurred or be continuing and (ii) the
representations and warranties of Obligors contained in the Loan Documents
are true, accurate and complete in all respects on and as of the date
hereof to the same extent as though made on and as of such date, except to
the extent such representations and warranties specifically relate to an
earlier date.
(b) Obligors jointly and severally represent and warrant to Agent
and Lenders that the execution, delivery and performance, as the case may
be, by each Obligor of this Agreement, the related Loan Documents, and the
other documents and transactions contemplated by each of the foregoing are
within each such Person's corporate powers, have been duly authorized by
all necessary corporate action (including, without limitation, all
necessary shareholder approval) of each such Person, have received all
necessary governmental approvals, and do not and will not contravene or
conflict with any provision of law applicable to any such Person, the
certificate or articles of incorporation or bylaws of any such Person, or
any order, judgment or decree of any court or other agency of government
or any contractual obligation binding upon any such Person; and this
Agreement, the Credit Agreement and each other Loan Document is the legal,
valid and binding obligation of each Obligor enforceable against each such
Person in accordance with its terms.
3. CONDITIONS PRECEDENT. This Agreement shall become effective on the date
first set forth above (the "EFFECTIVE DATE"), PROVIDED that each of the
following items shall have been received by Agent or satisfied (in the case of
paragraphs (b) and (c) below), all in form and substance satisfactory to Agent:
(a) AGREEMENT. This Agreement, duly executed by each Obligor, Agent
and Requisite Lenders.
(b) NO DEFAULT. After giving effect to this Agreement, no Default or
Event of Default shall have occurred and be continuing as of the Effective
Date, or would result after giving effect to the transactions contemplated
hereby.
(c) WARRANTIES AND REPRESENTATIONS. The warranties and
representations of each Obligor contained in this Agreement shall be true
and correct as of the Effective Date.
(d) FEES, COSTS AND EXPENSES. Agent shall have received (at Agent's
option, by payment or as a charge against the Revolving Loan) (i) for the
ratable benefit of the Lenders signatory to this Agreement, a commitment
fee of $325,000, which fee shall be fully earned on the effective date
hereof and shall be non-refundable when paid, and (ii) all other fees,
costs and expenses, including reasonable attorneys' fees, due pursuant to
the Loan Documents, including as incurred by Agent in connection herewith.
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4. EFFECT ON LOAN DOCUMENTS. This Agreement is limited to the specific
purpose for which it is granted and, except as specifically set forth above (a)
shall not be construed as a consent, waiver or other modification with respect
to any term, condition or other provision of any Loan Document and (b) each of
the Loan Documents shall remain in full force and effect and are each hereby
ratified and confirmed.
5. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and
shall inure to the benefit of Obligors, Agent, Lenders and their
respective successors and assigns; PROVIDED that no Obligor may assign its
rights, obligations, duties or other interests hereunder without the prior
written consent of Agent and Lenders. The terms and provisions of this
Agreement are for the purpose of defining the relative rights and
obligations of Obligors, Agent and Lenders with respect to the
transactions contemplated hereby and there shall be no third party
beneficiaries of any of the terms and provisions of this Agreement.
(b) ENTIRE AGREEMENT. This Agreement, including all documents
attached hereto, incorporated by reference herein or delivered in
connection herewith, constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all other
understandings, oral or written, with respect to the subject matter
hereof.
(c) FEES AND EXPENSES. As provided in Section 11.3 of the Credit
Agreement, Obligors agree to pay on demand all fees, costs and expenses
incurred by Agent in connection with the preparation, execution and
delivery of this Agreement, together with the fees, costs and expenses set
forth in SECTION 3(D) hereof and all other fees, costs and expenses
incurred by Agent prior to the date hereof which are payable by Obligors
pursuant to Section 11.3 of the Credit Agreement.
(d) INCORPORATION OF CREDIT AGREEMENT. The provisions contained in
Sections 11.9 and 11.14 of the Credit Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety.
(e) ACKNOWLEDGMENT. Each Obligor hereby represents and warrants that
there are no liabilities, claims, suits, debts, liens, losses, causes of
action, demands, rights, damages or costs, or expenses of any kind,
character or nature whatsoever, known or unknown, fixed or contingent
(collectively, the "CLAIMS"), which any Obligor may have or claim to have
against Agent or any Lender, or any of their respective affiliates,
agents, employees, officers, directors, representatives, attorneys,
successors and assigns (collectively, the "LENDER RELEASED PARTIES"),
which might arise out of or be connected with any act of commission or
omission of the Lender Released Parties existing or occurring on or prior
to the date of this Agreement, including, without limitation, any Claims
arising with respect to the Obligations or any Loan Documents. In
furtherance of the foregoing, each Obligor hereby releases, acquits and
forever discharges the Lender Released Parties from any and all Claims
that any Obligor may have or claim to have, relating to or arising out of
or in connection with the
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Obligations or any Loan Documents or any other agreement or transaction
contemplated thereby or any action taken in connection therewith from the
beginning of time up to and including the date of the execution and
delivery of this Agreement. Each Obligor further agrees forever to refrain
from commencing, instituting or prosecuting any lawsuit, action or other
proceeding against any Lender Released Parties with respect to any and all
Claims which might arise out of or be connected with any act of commission
or omission of the Lender Released Parties existing or occurring on or
prior to the date of this Agreement, including, without limitation, any
Claims arising with respect to the Obligations or any Loan Documents.
(f) CAPTIONS. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
(g) SEVERABILITY. Whenever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under such law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts, and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Delivery of an executed counterpart of a signature page to this Agreement
by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
[signature pages follow]
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IN WITNESS WHEREOF, this Fifth Amendment has been duly executed and
delivered as of the day and year first above written.
WEIDER NUTRITION INTERNATIONAL, INC.
WEIDER NUTRITION GROUP, INC.
WNG HOLDINGS (INTERNATIONAL) LTD.
For each of the foregoing:
By:________________________________
Title:_____________________________
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
By: _______________________________
Title: Duly Authorized Signatory
FIRST UNION NATIONAL BANK, successor by merger to
Corestates Bank, N.A.
By: _______________________________
Title:_____________________________
LASALLE NATIONAL BANK
By: _______________________________
Title:_____________________________
THE BANK OF NOVA SCOTIA
By: _______________________________
Title:_____________________________
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By: _______________________________
Title:_____________________________
By: _______________________________
Title:_____________________________
DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
By: _______________________________
Title:_____________________________
By: _______________________________
Title:_____________________________
ZIONS FIRST NATIONAL BANK
By: _______________________________
Title:_____________________________
