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Exhibit 10.45
EXECUTION COPY
SECOND AMENDMENT
SECOND AMENDMENT, dated as of November 12, 1999 (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, Holdings, the Borrower, the Lenders, the Co-Agent and the
Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Borrower has requested that the Administrative Agent,
with the consent of the Required Lenders, amend certain provisions of the Credit
Agreement; and
WHEREAS, the Administrative Agent and the Lenders are willing to
agree to the requested amendments 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. Amendment to Subsection 4.23 of the Credit Agreement. Subsection
4.23 of the Credit Agreement is hereby amended by deleting the date "September
30, 1999" therein and substituting, in lieu thereof, "November 30, 1999".
3. Amendment to Subsection 7.1 of the Credit Agreement. Subsection
7.1 of the Credit Agreement is hereby amended by deleting such subsection in its
entirety and substituting, in lieu thereof, the following:
"7.1 Financial Condition Covenants.
(a) Leverage Ratio. Permit the ratio of (i) Consolidated Total Debt
at the last day of any fiscal quarter ending during any "Test Period" set
forth below to (ii)
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Consolidated EBITDA for the period of four consecutive fiscal quarters ending on
such date to be greater than the amount set forth opposite such period below:
Test Period Ending Leverage Ratio
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12/31/96 4.25 to 1.00
12/31/97 4.00 to 1.00
12/31/98 3.75 to 1.00
12/23/99 and thereafter 3.00 to 1.00
(b) Interest Coverage Ratio. Permit for any period of four
consecutive fiscal quarters ending on the last day of any fiscal year the
ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Cash
Interest Expense for such period to be less than the amount set forth
opposite such period below:
Test Period Ending Interest Coverage Ratio
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12/31/96 1.75 to 1.00
12/31/97 2.20 to 1.00
12/31/98 2.60 to 1.00
12/23/99 - 1/08/00 2.90 to 1.00
12/23/00- 1/08/01 3.00 to 1.00
12/23/01 and thereafter 3.00 to 1.00"
4. Amendments to Subsection 7.2 of the Credit Agreement. (a)
Subsection 7.2(c) of the Credit Agreement is hereby amended by deleting the
amount "$5,000,000" therein and substituting, in lieu thereof, "$10,000,000".
(b)Subsection 7.2(1) of the Credit Agreement is hereby amended by
deleting such subsection in its entirety and substituting, in lieu thereof, the
following:
"(1) so long as no Default or Event of Default is continuing at the
time thereof, or would occur as a result thereof, the incurrence of
Indebtedness (including without limitation Indebtedness in respect of
Sale/Leaseback Transactions or Financing Lease Obligations) in an
aggregate principal amount not to exceed $15,000,000 at any time
outstanding to finance (or to reimburse the Borrower or its Subsidiaries
for amounts expended to finance), on terms reasonably satisfactory to the
Required Lenders, the expansion, renovation or relocation of their
manufacturing, warehouse or office facilities (including, without
limitation, any equipment related thereto), provided that, at the time of
incurrence of such Indebtedness, the Borrower shall have provided
projections to the Lenders showing that after giving effect thereto it
will be in compliance with all covenants set forth in subsection 8.1 on a
pro forma basis for each future year during the remaining term of this
Agreement;"
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5. Amendment to Subsection 7.8 of the Credit Agreement. Subsection
7.8 of the Credit Agreement is hereby amended by deleting such subsection
in its entirety and substituting, in lieu thereof, the following:
"7.8 Limitation on Capital Expenditures. Make or commit to make any
Capital Expenditures other than Capital Expenditures in an aggregate
amount not to exceed (i) $6,000,000 for the Borrower and its Subsidiaries
during the fiscal year of the Borrower ending on or about December 31,
1999; provided, that the Borrower and its Subsidiaries may make, or commit
to make, additional Capital Expenditures in the amount of up to
$12,500,000 in the aggregate, to be used to finance the expansion,
renovation or relocation of their manufacturing, warehouse or office
facilities (including, without limitation, any equipment related thereto);
(ii) $20,000,000 for the Borrower and its Subsidiaries during the fiscal
year of the Borrower ending on or about December 31, 2000; and (iii)
$12,000,000 per annum for the Borrower and its Subsidiaries during any
subsequent fiscal year of the Borrower; provided, that, commencing with
the fiscal year of the Borrower ending on or about December 31, 2000, (a)
Capital Expenditures not in excess of $2,000,000 permitted to be made
during any fiscal year (and not carried over from a prior fiscal year) and
not made during such fiscal year may be carried over and expended during
the next succeeding fiscal year and (b) Capital Expenditures made during
any fiscal year shall be first deemed made in respect of amounts carried
over from the prior fiscal year and then deemed made in respects of
amounts permitted for such fiscal year."
6. Amendment to Subsection 7.10 of the Credit Agreement. Subsection
7.10 of the Credit Agreement is hereby amended by deleting such subsection in
its entirety and substituting, in lieu thereof, the following:
"7.10 Limitation on Optional Payments and Modifications of Debt
Instruments and other Obligations. (a) Make any optional payment or
prepayment on or redemption, defeasance or purchase of any Senior
Subordinated Notes except (i) in accordance with the provisions of
subsection 3.1 (b)(i)(u), (ii) with the proceeds of Indebtedness permitted
under subsections 7.2(e) (in connection with the incurrence of Refinancing
Indebtedness under subsection 7.2(o)) and 7.2(o), (iii) as long as no
Default or Event of Default has occurred and is continuing, in an
aggregate cash amount not to exceed $15,000,000 unless the ratio of
Consolidated Total Debt to Consolidated EBITDA (calculated on the terms
set forth in subsection 7.1(a)) for the most recent completed four fiscal
quarters prior to any such optional payment, prepayment, redemption,
defeasance or purchase is less than or equal to 2.0 to 1.0 and then in an
aggregate cash amount not to exceed $30,000,000, and (iv) so long as (x)
no Default or Event of Default has occurred and is continuing, (y) the
amount available for borrowing by the Borrower under the Revolving Credit
Commitments is not less than $15,000,000 and (z) the ratio of Consolidated
Total Debt to Consolidated EBITDA (calculated on the terms set forth in
subsection 7.1(a)) for the most recent completed four fiscal quarters
prior to any such optional payment, prepayment, redemption, defeasance or
purchase is less than or equal to 1.5 to 1.0, in an aggregate cash amount
not to exceed $40,000,000; (b) amend, modify or change, or
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consent or agree to any amendment, modification or change to any of the
terms of the Senior Subordinated Note Indenture (other than any such
amendment, modification or change which (i) would extend the maturity or
reduce the amount of any payment of principal thereof or would reduce the
rate or extend the date for payment of interest thereon or (ii) does not
in any way adversely affect the interests of the Administrative Agent or
the Lenders hereunder, thereunder or under the other Loan Documents or
(iii) is of a technical or clarifying nature); (c) designate any
Indebtedness having a principal amount in excess of $20,000,000 as "Senior
Debt" under and as defined in the Senior Subordinated Note Indenture
without the consent of the Administrative Agent; or (d) amend, modify or
change, or consent or agree to any amendment, modification or change to
the articles of incorporation (or such similar charter documents) of the
Borrower or any Subsidiary in any material respect."
7. Amendment to Subsection 7.12 of the Credit Agreement. Subsection
7.12 of the Credit Agreement is hereby amended by deleting such subsection in
its entirety and substituting, in lieu thereof, the following:
"7.12 Limitation on Changes in Fiscal Year. Permit the fiscal year
of the Borrower to end on a day not falling within the period from and
including December 23 to and including January 8."
8. Amendment to Subsection 12.16 of the Credit Agreement. Subsection
12.16(a) of the Credit Agreement is hereby amended by deleting such subsection
in its entirety and substituting, in lieu thereof, the following:
"(a) The obligations arising under the Guarantee and Collateral
Agreement shall be unconditional and binding on each of Holdings and the
Borrower pursuant to the terms therein; provided that if either (i) on the
last day of any period of four fiscal quarters the ratio of Consolidated
Total Debt to consolidated EBITDA (as calculated according to the
provisions of subsection 7.1(a)) is less than 1.5 to 1.0 or (ii) ratings
of BBB- and Baa3 or above are attained by the Borrower or Holdings from
Standard & Poor's Ratings Group and Xxxxx'x Investors Services,
respectively, the Collateral pledged (but not the Guarantee contained) in
such Guarantee and Collateral Agreement shall, upon the prior written
consent of the Administrative Agent and the Required Lenders (in each
case, which consent shall not be unreasonably withheld), be released; and
provided further that if such performance criteria at any time thereafter
are not maintained, any such Collateral that has been released shall again
be pledged in favor of the Administrative Agent, for the ratable benefit
of the Lenders, pursuant to the Guarantee and Collateral Agreement."
9. Conditions to Effectiveness. This Amendment shall be effective on
the conditions that (a) the Administrative Agent shall have received
counterparts hereof, duly executed and delivered by Holdings and the Borrower
and consented to by the Required Lenders and the Grantors under the Guarantee
and Collateral Agreement dated as of May 7, 1996 (the "Guarantee and Collateral
Agreement") among Holdings, the Borrower, the Subsidiary Guarantors named
therein and the Administrative Agent; (b) the Administrative Agent shall have
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received, for the account of each Lender which executes and delivers this
Amendment, an amendment fee in the amount of $7,500 per Lender; and (c) no
Default or Event of Default shall have occurred and be continuing on the date
hereof after giving effect to this Amendment. The date on which all of the above
conditions are met shall be the date of effectiveness of this Amendment (the
"Amendment Effective Date").
10. Representations and Warranties. In order to induce the
Administrative Agent and the Lenders to enter into this Amendment, Holdings and
the Borrower hereby represent and warrant to the Administrative Agent and the
Lenders that the representations and warranties of Holdings, the Borrower and
the other Loan Parties 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 expressly relate to an earlier date in
which case 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.
11. Notice of Effectiveness. The Administrative Agent shall promptly
advise the Lenders and the Borrower that this Amendment has become effective.
12. Applicable Law and Jurisdiction. This Amendment has been
executed and delivered in New York, New York, and the rights and obligations of
the parties hereto shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York.
13. Counterparts. This Amendment may be executed by the parties
hereto in any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
14. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of Holdings and the Borrower and their respective
successors and assigns, and upon the Administrative Agent and the Lenders and
their respective successors and assigns. The execution and delivery of this
Amendment by any Lender prior to the Amendment Effective Date shall be binding
upon its successors and assigns and shall be effective as to any loans or
commitments assigned to it after such execution and delivery.
15. 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 Holdings or the
Borrower 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.
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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.
TWINLAB CORPORATION
By: /s/ Xxxx Xxxxxxxx
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Name: XXXX XXXXXXXX
Title: PRESIDENT
TWIN LABORATORIES INC.
By: /s/ Xxxx Xxxxxxxx
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Name: XXXX XXXXXXXX
Title: PRESIDENT
THE CHASE MANHATTAN BANK as
Administrative Agent, Issuing Bank, Swing Line
Lender and as a Lender
By:
-------------------------------------------
Name:
Title:
Consented to:
THE BANK OF NEW YORK, as Co-Agent and as a Lender
By:
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Name:
Title:
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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.
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: /s/ Xxxx Xxx Xxx
-------------------------------------------
Name: XXXX XXX XXX
Title: VICE PRESIDENT
Consented to:
THE BANK OF NEW YORK, as Co-Agent and as a Lender
By:
------------------------------
Name:
Title:
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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.
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: /s/ Xxxx Xxx Xxx
-------------------------------------------
Name: XXXX XXX XXX
Title: VICE PRESIDENT
Consented to:
THE BANK OF NEW YORK, as Co-Agent and as a Lender
By: /s/ Xxxx X. XxXxxxxx
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Name:
Title:
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BANKBOSTON, N.A. formerly known as
THE FIRST NATIONAL BANK OF BOSTON, as a Lender
By: /s/ Xxxxxxx X. Xxxx, Xx.
-----------------------------------
Name: XXXXXXX X. XXXX, XX.
Title: Managing Director
DRESDNER BANK AG, NEW YORK 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:
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THE FIRST NATIONAL BANK OF BOSTON, as a Lender
By:
-----------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: XXXXXXX X. XXXXXXXXX
Title: VICE PRESIDENT
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: XXXX X. XXXXXXXX
Title: VICE PRESIDENT
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By:
-----------------------------------
Name:
Title:
EUROPEAN AMERICAN BANK, as a Lender
By:
-----------------------------------
Name:
Title:
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THE FIRST NATIONAL BANK OF BOSTON, as a Lender
By:
-----------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK 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: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
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ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG,
GRAND CAYMAN ISLAND BRANCH, as a Lender
By: /s/ Xxxx Xxxxxxxxxx /s/ Xxxx X. Xxxxxxx
------------------------
Name: XXXX XXXXXXXXXX XXXX X. XXXXXXX
Title: Vice President FIRST VICE PRESIDENT
ZIONS FIRST NATIONAL BANK, as a Lender
By:
-------------------------------------------
Name:
Title:
ADVANCED RESEARCH PRESS, INC., as a Grantor
By:
-------------------------------------------
Name:
Title:
CHANGES INTERNATIONAL OF FORT XXXXXX BEACH, INC., as a Grantor
By:
-------------------------------------------
Name:
Title:
HEALTH FACTORS INTERNATIONAL, INC., as a Grantor
By:
-------------------------------------------
Name:
Title:
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ERSTE BANK DER XXXXXX REICHISCHEN SPARKASSEN AG,
GRAND CAYMAN ISLAND BRANCH, as a Lender
By:
-------------------------------------------
Name:
Title:
ZIONS FIRST NATIONAL BANK, as a Lender
By: /s/ P. Xxxx Xxxxx
-------------------------------------------
Name: P. Xxxx Xxxxx
Title: Vice President
ADVANCED RESEARCH PRESS, INC., as a Grantor
By:
-------------------------------------------
Name:
Title:
CHANGES INTERNATIONAL OF FORT XXXXXX BEACH, INC., as a Grantor
By:
-------------------------------------------
Name:
Title:
HEALTH FACTORS INTERNATIONAL, INC., as a Grantor
By:
-------------------------------------------
Name:
Title:
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ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG,
GRAND CAYMAN ISLAND BRANCH, as a Lender
By:
-------------------------------------------
Name:
Title:
ZIONS FIRST NATIONAL BANK, as a Lender
By:
-------------------------------------------
Name:
Title:
ADVANCED RESEARCH PRESS, INC., as a Grantor
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: XXXX XXXXXXXX
Title: PRESIDENT
CHANGES INTERNATIONAL OF FORT XXXXXX BEACH, INC., as a Grantor
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: XXXX XXXXXXXX
Title: PRESIDENT
HEALTH FACTORS INTERNATIONAL, INC., as a Grantor
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: XXXX XXXXXXXX
Title: PRESIDENT
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XXXXXXX LABORATORIES INC., as a Grantor
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
PR NUTRITION, INC., as a Grantor
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
TWINLAB FSC INC., as a Grantor
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
