1
SIXTH AMENDMENT AND WAIVER
SIXTH AMENDMENT AND WAIVER, dated as of March 30, 2001 (this
"Amendment"), to the Amended and Restated Credit and Guarantee Agreement, dated
as of November 15, 1996 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Twinlab Corporation, a Delaware
corporation ("Holdings"), Twin Laboratories Inc., a Utah corporation (the
"Borrower"), the several banks and other financial institutions parties to the
Credit Agreement (the "Lenders"), The Bank of New York, as co-agent for the
Lenders thereunder (in such capacity, the "Co-Agent"), and The Chase Manhattan
Bank, as administrative agent for the Lenders thereunder (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Administrative Agent
and the Lenders amend the Credit Agreement and waive certain defaults arising
from the Borrower's failure to comply with certain covenants;
WHEREAS, the Administrative Agent and the Lenders are willing to
agree to the requested amendments and waivers on the terms and conditions
contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in
the Credit Agreement shall have their defined meanings when used herein.
2. Amendments to Subsection 1.1 (Definitions). Subsection 1.1 of
the Credit Agreement is hereby amended by (i) deleting "March 30, 2001" where it
appears in the definition of "Amendment Period" in such subsection and (ii)
inserting, in lieu thereof, "April 3, 2001".
3. Certain Agreements. (a) The Borrower, the Administrative Agent
and the Lenders acknowledge and agree that, during the Amendment Period, the
Lenders shall make Extensions of Credit only to the extent that such Extensions
of Credit do not exceed the lesser of (i) the Borrowing Base or (ii)
$45,000,000.
(1) The Borrower hereby acknowledges and agrees that, during
the Amendment Period, the Borrower shall not, and shall not permit any of its
Subsidiaries to, make any Restricted Payments on any class of the Capital Stock
of the Borrower (other than as permitted under subsections 7.7(a), (b) and (c)
of the Credit Agreement) or make any optional payment or prepayment or
redemption, defeasance or purchase of any Senior Subordinated Notes or any other
Subordinated Indebtedness (if any) of the Borrower.
2
(2) The Borrower hereby acknowledges and agrees that, during
the Amendment Period, the Borrower shall not, and shall not permit any of its
Subsidiaries to, make any Permitted Acquisitions.
(3) The Borrower hereby agrees to keep the Administrative
Agent and the Lenders informed of the progress of the status of the Borrower's
discussions concerning entering into an alternative credit facility that will
replace the Credit Agreement, including, without limitation, prompt notice of
the receipt and execution of any commitment letter, the completion by the
relevant lender of its due diligence and collateral audit review, and the
setting of any closing date, or, as the case may be, the decision by the
Borrower or any new lender not to pursue such alternative credit facility.
(4) Failure to comply with the agreement contained in
paragraph (a) of this Section 3 shall constitute an Event of Default under
Section 10(a) of the Credit Agreement and failure to comply with the agreements
contained in paragraphs (b) and/or (c) of this Section 3 shall constitute an
Event of Default under Section 10(c) of the Credit Agreement.
4. Waivers. (a) For the Amendment Period, the Administrative
Agent and the Lenders hereby waive (i) the Borrower's non-compliance with the
provisions of subsections 6.1, 6.2, 6.6 and 6.7 of the Credit Agreement, solely
insofar as such non-compliance relates to the Borrower's failure to deliver
financial statements in accordance with GAAP in respect of its 1998, 1999 and
2000 fiscal years and of periods included in its 1998, 1999 and 2000 fiscal
years through and including September 30, 2000 and to the Borrower's failure to
deliver a Borrowing Base Certificate with respect to the month of February 2001,
and (ii) the Borrower's non-compliance with the financial covenants contained in
subsection 7.1(a) and 7.1(b) of the Credit Agreement, solely insofar as such
non-compliance relates to its 1998, 1999 and 2000 fiscal years and to fiscal
quarters in its 1998, 1999 and 2000 fiscal years.
(1) For the Amendment Period, the Administrative Agent and
the Lenders hereby waive any breach by the Borrower of any representation or
warranty made or deemed to be made by it pursuant to subsection 5.2 of the
Credit Agreement, solely insofar as such breach arises out of the matters
described in clauses (i) and (ii) of Section 4(a) of this Amendment.
(2) The Administrative Agent and the Lenders hereby agree
that the waivers contained in this Section 4 shall have effect for the Amendment
Period for purposes of Sections 10(b), (c) and (d) of the Credit Agreement.
5. Conditions to Effectiveness. This Amendment shall be effective
on the date (the "Amendment Effective Date") that (a) the Administrative Agent
shall have received counterparts hereof, duly executed and delivered by the
Borrower, Holdings, the Administrative Agent, the Required Lenders and the
Grantors under the Guarantee and Collateral Agreement, and (b) no Default or
Event of Default shall have occurred and be continuing on the date hereof after
giving effect to this Amendment.
2
3
6. Representations and Warranties. In order to induce the
Administrative Agent and the Lenders to enter into this Amendment, the Borrower
and Holdings hereby represent and warrant to the Administrative Agent and the
Lenders that the representations and warranties of the Borrower and Holdings
contained in the Loan Documents are true and correct in all material respects on
and as of the Amendment Effective Date (after giving effect hereto) as if made
on and as of the Amendment Effective Date (except where such representations and
warranties were true and correct in all material respects as of such earlier
date); provided that all references to the "Credit Agreement" in any Loan
Document shall be and are deemed to mean the Credit Agreement as amended hereby.
7. Payment of Expenses. The Borrower agrees to pay or reimburse
the Administrative Agent for all of its out-of-pocket costs and expenses
incurred in connection with the development, preparation, execution, delivery
and administration of this Amendment and any other documents prepared in
connection herewith, and the consummation and administration of the transactions
contemplated hereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent (including, without
limitation, Xxxxxx Xxxxx & Xxxxxxx LLP and Xxxxxxx Xxxxxxxx & Xxxxxxxx) and
financial advisors to the Administrative Agent (including, without limitation,
FTI Consulting Inc.).
8. Counterparts. This Amendment may be executed by the parties to
this Amendment on any number of separate counterparts (which may include
counterparts delivered by facsimile transmission), and all of said counterparts
taken together shall be deemed to be one and the same instrument.
9. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the Borrower and Holdings and their respective
successors and assigns, and upon the Administrative Agent and the Lenders and
their successors and assigns.
10. Continuing Effect. Except as expressly amended hereby, the
Credit Agreement as amended by this Amendment shall continue to be and shall
remain in full force and effect in accordance with its terms. This Amendment
shall not constitute an amendment or waiver of any provision of the Credit
Agreement not expressly referred to herein and shall not be construed as an
amendment, waiver or consent to any action on the part of the Borrower and
Holdings that would require an amendment, waiver or consent of the
Administrative Agent or the Lenders except as expressly stated herein. Any
reference to the "Credit Agreement" in the Loan Documents or any related
documents shall be deemed to be a reference to the Credit Agreement as amended
by this Amendment.
11. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
day and year first above written.
3
4
TWINLAB CORPORATION
By:_________________________________
Name:
Title:
TWIN LABORATORIES INC.
By:_________________________________
Name:
Title:
THE CHASE MANHATTAN BANK as
Administrative Agent, Issuing Bank, Swing
Line Lender and as a Lender
By:_________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Co-Agent and as a Lender
By:_________________________________
Name:
Title:
FLEETBOSTON,
as a Lender
By:_________________________________
Name:
Title:
0
XXXXXXXX XXXX XX, XXX XXXX BRANCH
AND GRAND CAYMAN BRANCH,
as a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By:_________________________________
Name:
Title:
EUROPEAN AMERICAN BANK,
as a Lender
By:_________________________________
Name:
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG, GRAND CAYMAN ISLAND
BRANCH, as a Lender
By:_________________________________
Name:
Title:
6
ZIONS FIRST NATIONAL BANK,
as a Lender
By:_________________________________
Name:
Title:
ADVANCED RESEARCH PRESS, INC.,
as a Grantor
By:_________________________________
Name:
Title:
XXXXXXX LABORATORIES, INC.,
as a Grantor
By:_________________________________
Name:
Title:
CHANGES INTERNATIONAL, INC.,
as a Grantor
By:_________________________________
Name:
Title:
HEALTH FACTORS INTERNATIONAL, INC.
as a Grantor
By:_________________________________
Name:
Title:
7
PR NUTRITION, INC.,
as a Grantor
By:_________________________________
Name:
Title:
