EXHIBIT 4.10
EIGHTH AMENDMENT AND CONSENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This EIGHTH AMENDMENT AND CONSENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (this "AMENDMENT") dated as of February 16, 2000 and effective as of
February 29, 2000 (the "EFFECTIVE DATE") 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"),
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 as of May 6, 1997 (as previously 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, and Agent and Lenders are willing to grant, certain amendments and
consents under the Credit Agreement.
C. This Amendment shall constitute a Loan Document and these Recitals
shall be construed as part of this Amendment; 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. AMENDMENT. Subject to the conditions precedent set forth in Section 5
hereof, the Credit Agreement is hereby amended as follows:
(a) The text of Section 1.5(a) of the Credit Agreement is replaced
with the following text:
"(a) Borrowers shall pay interest to Agent, for the ratable benefit
of Lenders, in arrears on (i) the first day of each month with
respect to Index Rate Loans and (ii) on the last day of each
applicable LIBOR Period with respect to LIBOR Loans, at a per annum
rate equal to (A) with respect to
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Index Rate Loans, the Index Rate plus a margin of 4.00% and (B) with
respect to LIBOR Loans, the LIBOR Rate plus a margin of 5.50%."
(b) The definition of "REVOLVING COMMITMENT TERMINATION DATE" in
Annex A to the Credit Agreement is amended by deleting the reference to
"February 29, 2000" and replacing such reference with a reference to "June
30, 2000."
(c) The definition of "REVOLVING CREDIT LOAN COMMITMENT" in Annex A
to the Credit Agreement is amended by deleting the reference to "One
Hundred Fifteen Million Dollars ($115,000,000)" and replacing such
reference with a reference to "Ninety Million Dollars ($90,000,000)."
(d) Annex E to the Credit Agreement is amended by deleting
paragraphs (a) and (b) in their entirety and replacing them with the
following paragraphs:
"(a) To Agent and Lenders, within thirty (30) days after the end of
each Fiscal Month (i) for Holdings and its Subsidiaries on a
consolidated and consolidating basis, unaudited balance sheets as of
the close of such Fiscal Month and the related statements of income
and cash flow for that portion of the Fiscal Year ending as of the
close of such Fiscal Month, in each case setting forth in
comparative form the figures for the corresponding period in the
prior year and the figures contained in the budget, all prepared in
accordance with GAAP (subject to normal year-end adjustments), (ii)
a certificate of the Chief Financial Officer of Holdings (on behalf
of itself and each Borrower) attached to the foregoing financial
information to the effect that (A) the attached Financial Statements
present fairly in all material respects and in accordance with GAAP
(subject to normal year-end adjustments and the absence of
footnotes) the financial position and results of operations of
Holdings and its Subsidiaries, on a consolidated and consolidating
basis, in each case as at the end of, and for, such Fiscal Month,
(B) all other attached financial information is true, correct and
complete in all material respects and (C) there was no Default or
Event of Default in existence as of such time or, if a Default or
Event of Default shall have occurred and be continuing, describing
the nature thereof and all efforts undertaken to cure such Default
or Event of Default, and (iii) a statement setting forth the
calculations used in determining compliance with each financial
covenant set forth on ANNEX G;
(b) To Agent and Lenders, within forty-five (45) days after the end
of each Fiscal Quarter, a management discussion and analysis which
includes a comparison to budget for that Fiscal Quarter and a
comparison of performance for that Fiscal Quarter to the
corresponding period in the prior year;"
(e) Annexes G and J to the Credit Agreement are respectively
replaced with Annexes G and J respectively attached as ANNEXES A and B
hereto.
2. CONSENT. Subject to the conditions precedent set forth in Section 5
hereof, notwithstanding any provision of the Credit Agreement to the contrary,
Agent and Lenders
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hereby consent to the transfer (in the form of a loan, advance or investment) on
or before the earlier of the Revolving Commitment Termination Date and June 30,
2000 of an aggregate amount of up to $1.5 million by Obligors to its
Subsidiaries not domiciled in the United States.
3. AGREEMENTS BY OBLIGORS.
(a) Each Obligor hereby agrees that it will use its best efforts to
(i) obtain, on or before February 18, 2000, a signed proposal letter with
respect to refinancing of the Revolving Credit Loan Commitment and (ii)
hold, on or before April 21, 2000, a syndication bank meeting with respect
to such refinancing.
(b) In addition to the fee referenced in Section 5(e), the Obligors
jointly and severally agree to pay to Agent (at Agent's option, by payment
or as a charge against the Revolving Loan) for the ratable benefit of each
Lender, a fee of $450,000 on May 31, 2000, if the Revolving Credit Loan
Commitment has not been refinanced and terminated on or before such date.
4. REPRESENTATIONS AND WARRANTIES. As of the date hereof, Obligors
hereby jointly and severally represent and warrant to Agent and Lenders as
follows:
(a) After giving effect to this Amendment and 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 shall be 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) The execution, delivery and performance, as the case may be, by
each Obligor of this Amendment and the other documents and transactions
contemplated hereby are within each Obligor's corporate powers, have been
duly authorized by all necessary corporate action (including, without
limitation, all necessary shareholder approval) of each Obligor, have
received all necessary governmental approvals, and do not and will not
contravene or conflict with any provision of law applicable to any
Obligor, the certificate or articles of incorporation or bylaws of any
Obligor, or any order, judgment or decree of any court or other agency of
government or any contractual obligation binding upon any Obligor.
(c) This Amendment, the Credit Agreement and each other Loan
Document is the legal, valid and binding obligation of each Obligor
enforceable against each Obligor in accordance with its respective terms,
except to the extent enforceability is limited by bankruptcy, insolvency
or similar laws affecting the rights of creditors generally or by
application of general principles of equity.
5. CONDITIONS PRECEDENT. This Amendment shall become effective as of the
Effective Date, PROVIDED that as of the Effective Date each of the following
items shall have been received by Agent or satisfied, as the case may be, all in
form and substance satisfactory to Agent:
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(a) AMENDMENT. This Amendment, duly executed by each Obligor,
Agent and each Lender.
(b) REVOLVING CREDIT NOTES. Revolving Credit Notes reflecting each
Revolving Credit Loan Commitment set forth on ANNEX A attached hereto,
duly executed by each Borrower.
(c) NO DEFAULT. After giving effect to this Amendment and the
transactions contemplated hereby, no Default or Event of Default shall
have occurred and be continuing.
(d) WARRANTIES AND REPRESENTATIONS. After giving effect to this
Amendment and the transactions contemplated hereby, the warranties and
representations of each Obligor contained in this Amendment shall be true
and correct in all respects.
(e) 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 each Lender, an amendment fee of $450,000,
which fee shall be fully earned as of the 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.
6. EFFECT ON LOAN DOCUMENTS. This Amendment 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, amendment 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.
7. SUCCESSORS AND ASSIGNS. This Amendment 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 Amendment 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 Amendment.
8. ENTIRE AGREEMENT. This Amendment, 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.
9. FEES AND EXPENSES. Obligors shall pay to Agent on demand all fees,
costs and expenses owing by Obligors pursuant to Section 11.3 of the Credit
Agreement, including those incurred by Agent or otherwise payable in connection
with the preparation, execution and delivery of this Amendment.
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10. 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 with
respect to this Amendment.
11. 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 Amendment, 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 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 Amendment. 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 Amendment,
including, without limitation, any Claims arising with respect to the
Obligations or any Loan Documents.
12. CAPTIONS. Section captions used in this Amendment are for
convenience only, and shall not affect the construction of this Amendment.
13. SEVERABILITY. Whenever possible each provision of this Amendment shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Amendment 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 Amendment.
14. COUNTERPARTS. This Amendment 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 Amendment by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment.
[signature pages follow]
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IN WITNESS WHEREOF, this Eighth Amendment and Consent to Third Amended and
Restated Credit Agreement 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 BANK NATIONAL ASSOCIATION,
successor to LaSalle National Bank
By: _______________________________
Title:______________________________
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XXX XXXX XX XXXX XXXXXX
By: _______________________________
Title:______________________________
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
By: _______________________________
Title:______________________________
By: _______________________________
Title:______________________________
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: _______________________________
Title:______________________________
By: _______________________________
Title:______________________________
ZIONS FIRST NATIONAL BANK
By: _______________________________
Title:______________________________
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Annex A
ANNEX G (SECTION 6.20)
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
FINANCIAL COVENANTS
Nutrition shall not breach or fail to comply with the following
financial covenant, which shall be calculated in the same manner as in the most
recently delivered and approved Projections and in accordance with GAAP,
consistently applied:
MINIMUM EBITDA. Nutrition shall have, at the end of the period described below,
EBITDA equal to or greater than the amount set forth opposite such period:
PERIOD AMOUNT
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Nine Fiscal Months ending February 29, 2000 $12,050,000
Ten Fiscal Months ending March 31, 2000 $12,525,000
Eleven Fiscal Months ending April 30, 2000 $13,325,000
Twelve Fiscal Months ending May 31, 2000 $14,400,000
Twelve Fiscal Months ending June 30, 2000 $13,225,000
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Annex B
ANNEX J
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
COMMITMENTS
REVOLVING CREDIT
LENDER LOAN COMMITMENT PERCENTAGE
----- --------------- ----------
General Electric Capital Corporation $ 30,150,000.00 33.50%
First Union National Bank $ 15,525,000.00 17.25%
LaSalle Bank National Association $ 15,525,000.00 17.25%
The Bank of Nova Scotia $ 7,200,000.00 8.00%
Bank Austria Creditanstalt $ 7,200,000.00 8.00%
Corporate Finance, Inc.
Dresdner Bank AG, New York and $ 7,200,000.00 8.00%
Grand Cayman Branches
Zions First National Bank $ 7,200,000.00 8.00%
----------
Total: $ 90,000,000.00 100.00%
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