CONSENT AND SECOND AMENDMENT AGREEMENT
This CONSENT AND SECOND AMENDMENT AGREEMENT ("Agreement") is made and
entered into as of August ___, 2001, by and between WEIDER NUTRITION GROUP,
INC., a Utah corporation ("Borrower"), and WYNNCHURCH CAPITAL PARTNERS, L.P., a
Delaware limited partnership, and WYNNCHURCH CAPITAL PARTNERS CANADA, L.P., an
Alberta limited partnership (collectively, "Lenders").
R E C I T A L S
A. Pursuant to that certain Senior Subordinated Loan Agreement dated as
of June 30, 2000, as amended by that certain Consent and First Amendment
Agreement dated as of June 30, 2000 (the "Loan Agreement"), between Borrower and
Lenders, Lenders purchased promissory notes of Borrower having an aggregate
principal amount of $10,000,000 (the "Notes").
B. Borrower and Lenders have agreed to amend the Loan Agreement, on the
terms and subject to the conditions set forth herein.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. INCORPORATION OF RECITALS. The foregoing recitals are incorporated
herein by reference and made a part of this Agreement.
2. DEFINITIONS. All capitalized terms used herein without definition
shall have the meanings given to them in the Loan Agreement.
3. AMENDMENT OF THE LOAN AGREEMENT. The parties hereto agree to amend the
terms of the Loan Agreement as follows:
3.1. SECTION 6.13(b). Section 6.13(b) of the Loan Agreement is hereby
deleted in its entirety and the following language is hereby substituted
therefor.
"(b) LEVERAGE RATIOS.
(i) Borrower shall not permit the Total Leverage Ratio, as
determined as of each date set forth below, for the twelve-month
period ending on such date, to be greater than the ratio set forth
below opposite date:
DATE MAXIMUM RATIO
--------------------- -------------
August 31, 2001 4.60 to 1.00
November 30, 2001 4.25 to 1.00
February 28, 2002 4.00 to 1.00
May 31, 2002 4.00 to 1.00
August 31, 2002 3.75 to 1.00
November 30, 2002 3.50 to 1.00
February 28, 2003 3.50 to 1.00
May 31, 2003 3.30 to 1.00
August 31, 2003 3.30 to 1.00
November 30, 2003 3.30 to 1.00
February 29, 2004 and 3.20 to 1.00
the last day of each
fiscal quarter of
Borrower thereafter
(ii) Borrower shall not permit the Senior Leverage Ratio, as
determined as of each date set forth below, for the twelve-month
period ending on such date, to be greater than the ratio set forth
opposite such date:
DATE MAXIMUM RATIO
--------------------- -------------
August 31, 2001 3.90 to 1.00
November 30, 2001 3.75 to 1.00
February 28, 2002 3.75 to 1.00
May 31, 2002 3.50 to 1.00
August 31, 2002 3.50 to 1.00
November 30, 2002 3.50 to 1.00
February 28, 2003 3.00 to 1.00
May 31, 2003 3.00 to 1.00
August 31, 2003 2.75 to 1.00
November 30, 2003 2.75 to 1.00
February 29, 2004 2.75 to 1.00
May 31, 2004 and the last 2.50 to 1.00
day of each fiscal quarter
of Borrower thereafter
3.2 SECTION 6.13(c). Section 6.13(c) of the Loan Agreement is hereby
deleted in its entirety and the following language is hereby substituted
therefor.
"(c) INTEREST COVERAGE RATIO. Borrower shall not permit the Interest
Coverage Ratio, as determined as of each date set forth below, for the
twelve-month period ending on such date, to be less than the ratio set
forth below opposite such date:
DATE MAXIMUM RATIO
--------------------- -------------
August 31, 2002 1.85 to 1.00
November 30, 2002 2.25 to 1.00
February 28, 2003 2.30 to 1.00
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May 31, 2003 2.40 to 1.00
August 31, 2003 2.50 to 1.00
November 30, 2003 2.65 to 1.00
February 29, 2004 2.80 to 1.00
May 31, 2004 2.90 to 1.00
August 31, 2004 3.25 to 1.00
November 30, 2004 3.25 to 1.00
February 28, 2005 3.50 to 1.00
May 31, 2005 3.50 to 1.00
August 31, 2005 3.50 to 1.00
November 30, 2005 and 4.00 to 1.00"
the last day of each
fiscal quarter of
Borrower ending thereafter
4. REPRESENTATIONS AND WARRANTIES OF BORROWER. As a further inducement
for Lenders to consent to the transactions contemplated by this Agreement,
Borrower hereby represents and warrants to Lenders that:
(a) Borrower has the requisite corporate power and authority to
execute, deliver and carry out this Agreement and the transactions
contemplated hereby.
(b) The execution and delivery of this Agreement and the consummation
by Borrower of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and other consents, approvals
and the like required on the part of Borrower.
(c) Neither the execution and delivery by Borrower of this Agreement
nor the consummation of the transactions contemplated hereby, nor
compliance by Borrower with the terms, conditions and provisions hereof,
shall (i) conflict with or result in a breach of the terms, conditions or
provisions of; (ii) constitute a default under, (iii) result in the
creation of any lien, security interest, charge or encumbrance upon its
capital stock or assets pursuant to; (iv) give any third party the right to
accelerate any obligation under; (v) result in a violation of; or (vi)
require any authorization, consent, approval, exemption or other action by
or notice to any court or administrative or governmental body pursuant to
the Articles of Incorporation or by-laws of Borrower or any law, statute,
rule or regulation to which Borrower is subject, or any agreement,
instrument, order, judgment or decree to which Borrower is subject.
(d) This Agreement has been duly and validly executed and delivered
by Borrower and constitutes legal, valid and binding obligations, and all
such obligations of Borrower are enforceable in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity
limiting the availability of equitable remedies.
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(e) No event has occurred and is continuing and no condition exists
which would constitute an Event of Default or a Potential Event of Default.
(f) All representations and warranties of Borrower in the Loan
Agreement remain true and correct in all material respects as of the date
hereof, except (i) to the extent such representations and warranties
specifically relate to an earlier date; (ii) to the extent such
representations and warranties are specifically amended by this Agreement;
or (iii) to extent disclosed on SCHEDULE 1 attached hereto and incorporated
herein by reference.
5. MISCELLANEOUS.
(a) FURTHER ASSURANCES. Borrower shall, from time to time at the
request of Lenders, do all further acts and things as may in the opinion of
Lenders be necessary or advisable to effectuate the transaction and other
matters contemplated hereby, including, without limitation, the
modification of or amendment to any other agreements, certificates or
instruments to which Borrower is a party.
(b) NOTICES. All notices and other communications given to or made
upon any party hereto in connection with this Agreement shall be in
accordance with Section 8.5 of the Loan Agreement.
(c) COSTS AND EXPENSES. Borrower agrees to pay all costs and
expenses, including, without limitation, attorney's fees and expenses,
expended or incurred by Lenders in connection with (i) the preparation and
structuring of this Agreement; (ii) the enforcement of this Agreement; and
(iii) any actions for declaratory relief in any way related to this
Agreement or the agreements, certificates and instruments described herein
or contemplated hereby, or the protection or preservation of any rights of
Lenders hereunder.
(d) NO WAIVER. The execution and delivery of this Amendment shall
not, except as expressly provided herein, operate as a waiver of, limit in
any way any right, power or remedy under, or act as a consent to any
departure from any provision of the Loan Agreement or any Senior
Subordinated Loan Document. This consent shall not operate as a waiver of
any Event of Default occurring prior to or, except as expressly provided
herein, on or after the date hereof.
(e) GOVERNING LAW. This Amendment shall in all respects be governed
by the laws and judicial decisions of the State of Illinois.
(f) ENTIRE AGREEMENT. This Agreement and the instruments to be
delivered by the parties pursuant to the provisions hereof constitute the
entire agreement between the parties hereto with respect to the subject
matter hereof. Any amendments or alternative or supplementary provisions to
this Agreement must be made in writing and duly executed by an authorized
representative of each of the parties hereto.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by any party hereto on separate counterparts, each of
which, when so
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executed and delivered, shall be an original, but all such counterparts
shall together constitute one and the same instrument.
(h) CAPTIONS. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
(i) ENFORCEABILITY. Should any one or more of the provisions of this
Amendment be determined to be illegal or unenforceable as to one or more of
the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
(j) NO FURTHER AMENDMENTS. Except as specifically amended hereby, the
terms and provisions of the Loan Agreement shall remain in full force and
effect.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the day and year
first above written.
WEIDER NUTRITION GROUP, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
WYNNCHURCH CAPITAL PARTNERS, L.P.
By: Wynnchurch Partners, L.P.,
its general partner
By: Wynnchurch Management, Inc.,
its general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
WYNNCHURCH CAPITAL PARTNERS CANADA, L.P.
By: Wynnchurch Partners Canada, L.P.,
its general partner
By: Wynnchurch GP Canada, Inc.,
its general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
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SCHEDULE 1
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